Bullying is costing employers an average of $17,000 to $24,000 per claim and the Australian economy between $6 billion and $36 billion each year. Employers in the food and agribusiness industry should be aware that on 1 January 2014 new federal anti-bullying laws were introduced under the Fair Work Act 2009 (Cth), (FWA) giving the Fair Work Commission (FWC) new powers to hear complaints of bullying in the workplace.
Prior to this there were no specific provisions relating to bullying, requiring employees to rely on work health and safety (WHS) legislation, anti-discrimination legislation or civil claims. The new laws give the FWC power to make any orders they consider to be necessary or appropriate (except financial penalties or compensation) to stop the bullying and also the ability to refer the matter on to a WHS body for further investigation. To date there have been several decisions under this new jurisdiction but only two applications lodged relating to the food and agribusiness industry. We will keep you updated as these cases progress. In the meantime, it is important to understand these new laws and how they interact with your WHS obligations for your business.
What is ‘bullying’
Under the new laws, a worker is bullied if:
- while the worker is at work in a constitutionally covered business
- an individual or group of individuals repeatedly behaves unreasonably towards the worker, and
- the behaviour creates a risk to health and safety.
Some examples of bullying behaviour include: aggressive or intimidating conduct, belittling or humiliating comments and unreasonable work expectations.
Defence of ‘reasonable management action’
The new bullying laws provide one key exception for employers when defending bullying claims; ‘reasonable management action’. Reasonable management action involves actions undertaken by management as part of the everyday operation of the business. It separates action taken by management that is reasonable and is carried out in a reasonable manner, with action that does not comply with company policies or procedural fairness and is considered bullying. Some examples of reasonable management action include:
- performance appraisals
- directing a worker to perform duties related to their job
- disciplinary actions for misconduct, and
- meetings to address unsatisfactory performance or inappropriate behaviour.
The question of ‘reasonableness’ of the management action is an objective assessment based on the actual management action, not the worker’s perception, and often with reference to the employer’s policies and procedures. Whether the action was carried out in a reasonable manner will be a question of fact in the context of any applicable company policies, procedural fairness requirements, and the surrounding circumstances of the individual including any psychological conditions of the worker that the employer is aware of.
Interaction with WHS obligations
The new bullying laws interact with the obligations on employers under WHS legislation to ensure, so far as is reasonably practicable, that workers and other persons are not exposed to risks to health and safety in the workplace. Under WHS legislation, the definition of health includes psychological health. This means that bullying and its side effects (such as stress, physical illness, injury and potentially even suicide) are clearly a potentially serious to risk an employee’s health and safety and should be managed as much as any physical safety risks at your workplace. Recent case law has seen businesses prosecuted and fined in bullying cases for failing to provide and maintain a safe workplace and failing to properly train and supervise employees. In some cases, the convictions and fines have extended to individual directors of companies and the bullies themselves.
With the introduction of these new laws, employers in the food and agribusiness sector should place a renewed focus on the elimination or alternatively, the minimisation of bullying in the workplace, in order to manage exposure to legal risks and comply with WHS obligations. It is a timely reminder to implement or review policies and procedures to ensure compliance with both your WHS obligations and the new anti-bullying laws. Updated policies should be combined with effective supervision and control mechanisms to ensure any potential bullying issues are noticed early and dealt with in strict compliance with your company policies.