The broad coverage of the new bullying laws that commence on 1 January 2014 present schools with additional challenges in how they manage and prevent bullying.
A worker who reasonably believes that he or she is being bullied at work will be entitled to apply to the Fair Work Commission (FWC) for an order to stop the bullying. Critically for schools, a worker is defined broadly to be an individual who performs work in any capacity, including as:
- an employee
- a contractor
- a subcontractor
- an apprentice
- a trainee
- a student gaining work experience
- a volunteer.
Schools tend to engage a broader range of “workers” who are not classically employees – sports coaches and assistants, parent volunteers in various roles, contract workers such as gardeners, independent canteen operators and the like. As “workers”, the obligation on a school is to ensure that they are all protected from bullying and are covered by the school’s bullying policy and procedures.
The Fair Work Commission has been given the power to make any order it considers appropriate to prevent a worker from being bullied. However, it cannot order reinstatement of a worker or for the payment of compensation.
A worker is bullied at work if an individual or group repeatedly behaves unreasonably towards the worker such that it creates a risk to health and safety. It includes behaviour that is victimising, humiliating, intimidating or threatening. However, reasonable management action carried out in a reasonable manner will not constitute bullying.
The FWC is required to deal with a bullying application within 14 days.
Before it may make a stop order, the FWC must be satisfied that bullying has occurred and that there is a risk that the bullying will continue. If the FWC is satisfied in that way, it is required to take into account the following matters in considering what orders it will make:
- any outcomes arising out of an investigation into the matter undertaken by another person or body;
- any procedure available to the worker to resolve grievances or disputes;
- any outcomes arising out of any procedure available to the worker to resolve grievances or disputes; and
- any other matters that the FWC considers to be relevant.
The types of orders that the FWC may make include an order requiring:
- compliance with an employer’s workplace bullying policy;
- regular monitoring of behaviours by an employer;
- the provision of information and additional support and training to workers; and
- review of the employer’s workplace bullying policy.
Further, if a stop order made by the FWC is breached, the worker, a Fair Work Inspector or a union may apply to the Federal Court or Federal Magistrates’ Court for further orders including for the payment of a civil penalty up to $51,000 for companies and $10,200 for an individual.
This additional regulatory scrutiny of employers will require them to ensure that they have robust workplace bullying policies and procedures for dealing with complaints and grievances arising out of bullying. The more effective an employer is able to resolve and deal with bullying complaints internally, the less likely it will suffer intervention by the FWC in the event a bullying complaint is made.
Schools are encouraged to now review and update their bullying policies and their procedures for dealing internally with complaints of bullying. This will assist them to avoid orders against them by the FWC.
References: Fair Work Amendment Act 2013 (Cth); Explanatory Memorandum to the Fair Work Amendment Bill 2013.