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.