Late last month, the Federal Government introduced the Fair Work Amendment Bill 2013 (Cth)(Bill), which includes provisions aimed at preventing workplace bullying. In particular, the Bill enables workers who are bullied at work to apply to the Fair Work Commission (FWC) for an order to stop the bullying and empowers the FWC to make any orders that it sees fit. However, the FWC will not be able to make an order reinstating a person’s employment or that an employer pay compensation or a pecuniary amount to an aggrieved party.
The Bill in detail
- Application to workers: The Bill intends for applications to be made to the FWC by ‘workers’. The term ‘workers’ captures all individuals carrying out work in any capacity for a person conducting a business or undertaking, and includes employees, contractors, subcontractors, outworkers, apprentices, trainees, students on work experience and volunteers. This wide definition of ‘worker’ mirrors the definition used in the model Work Health and Safety legislation which is operative in all states and territories with the exception of Victoria and Western Australia.
- Definition of ‘bullying’: The Bill establishes that a worker is bullied at work and therefore able to apply to the FWC for an order where “an individual or a group of individuals repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member, and that behaviour creates a risk to health and safety.”
However, the Bill recognises that the definition of ‘bullied at work’ should not prevent managers from effectively managing staff by making management decisions, directing and controlling work, providing feedback, dealing with poor performance and, if necessary, taking disciplinary action. Accordingly, the Bill clarifies that a worker who is subjected to reasonable management actions will not be considered to have been ‘bullied at work’.
Dealing with applications: The Bill proposes that the FWC will be required to respond to an application made to it, within 14 days. The FWC may then make any order as it sees fit, which may include a requirement for individuals to cease certain conduct, regular monitoring, the employer to participate in formal meetings or conciliation, staff training or compliance with, or a review of, the employer’s anti-bullying policy. A contravention of such an order may attract civil penalties of up to $51,000.
Additionally, a worker who has made an application to the FWC for an order to stop workplacebullying is not precluded under the Bill from bringing another claim in relation to the allegedbullying. For example, a worker who claims to have suffered discrimination, adverse action ordismissal, as a result of raising the issue of bullying, will still have avenues of complaint underthe Fair Work Act 2009 (Cth), equal opportunity legislation and the work health and safetylegislation. Also, this new bullying jurisdiction will not preclude investigations and prosecutionsunder work health and safety and criminal law.
What does this mean for you?
Complaints of bullying in the workplace have increased significantly in recent years. If the amendments are made employers are likely see a continuation of, and possible further increase in, bullying complaints. In particular, employers may see a spike in speculative claims of bullying by employees who, for example, are under performance management.
Undoubtedly, the process for dealing with bullying set out in the Bill seeks to strengthen attempts to, and the effects of, intervening in the early stages of any potential workplace bullying so as to put a stop to it before an employee suffers any negative impacts on their health and wellbeing. However, the downside of having this mechanism is that employers may incur greater time and financial costs in dealing with bullying complaints and lose the opportunity to address bullying internally before a complaint is escalated to an external body.
Accordingly, employers should:
- ensure they develop, make available and train staff on sound anti-bullying and harassment policies in order to minimise the risk of bullying occurring in the first instance and manage and respond to any allegations of bullying that do arise; and
- in the event the Bill is enacted (which seems likely) and an employee applies to the FWC, be prepared to participate in any meeting or conciliation listed by the FWC. Being able to point to any policies and procedures that deal with bullying that are already in place within an employer organisation will assist in this process.