The Australian Federal Government has passed landmark amendments to federal employment legislation, the Fair Work Act 2009 (Cth), in response to a government inquiry into workplace bullying. The new provisions will commence operation on 1 January 2014.
These provisions will for the first time enable a worker who is bullied at work to apply to the Fair Work Commission (FWC), Australia’s federal employment arbiter, for an order to stop the bullying.
One of the key issues highlighted by the Government’s inquiry was the difficulty many workers face in trying to find a quick way to end the bullying so that they do not suffer further harm or injury. The new anti-bullying provisions are designed to provide a quick and cost-effective individual remedy. Under the relevant provisions, the FWC is required to start dealing with the matter within 14 days. If the FWC is satisfied that the worker has been bullied, and there is a risk the worker will continue to be bullied, it may make an order to prevent the worker from being bullied at work.
The bullying behaviour must be repeated, unreasonable and create a risk to health and safety. However, a finding of bullying will not be made where the alleged bullying behaviour is in fact reasonable management action carried out in a reasonable manner.
The anti-bullying provisions do not just apply to the bullying of ‘employees’, but extend to the wider definition of ‘workers’ which can include contactors/sub-contractors, outworkers, apprentices/trainees, work experience students and volunteers.
The power of the FWC to make an order is wide ranging but does not extend to the payment of compensation. However, a pecuniary penalty may be imposed by the FWC if an order made is breached by the person(s) it applies to.
The Government has estimated that some 3,500 bullying-related applications may be lodged annually once the new provisions take effect on 1 January 2014, although this figure could be much higher.
Concerns have been raised by the Law Council of Australia regarding a number of potential issues arising from the amendments, including whether the definition of ‘bullying’ is truly an objective test (the explanatory memoranda to the Bill throws doubt on this) and whether the wide ranging powers given to the FWC could be used by an employee to bring ‘unfair dismissal’ type proceedings before a dismissal has occurred.
The anti-bullying provisions provide that they do not preclude separate investigation and prosecution under occupational, health and safety legislation. It is apparent the provisions could pose additional risks to employers, where anti-bullying orders could be used as evidence in safety investigations/prosecutions and workers’ compensation disputes, and could complicate or stifle a performance management process.
The recent change in government in Australia in September could result in further amendments being made to the anti-bullying provisions. The coalition government’s policy prior to the election indicated it was supportive of the provisions, but only if it is made clear that a worker has first sought help and impartial advice from an independent regulatory agency, and further, the changes are expanded to include the conduct of union officials towards workers and employers.
Employers operating in Australia should review and update their bullying and performance management policies and procedures, with a view to limiting claims under the proposed anti-bullying provisions. The FWC is required to take into account in considering the terms of any order it makes, any internal investigations being undertaken, available grievance procedures and any outcomes of an investigation/procedure. Accordingly, it will be in an employer’s interests to quickly institute a proper and fair investigation process into any bullying claim and action any outcomes, as this will more likely steer the terms of any FWC order in its favour, or dispense with the need for any order at all.