From 1 January 2014 the Fair Work Commission (FWC) will have powers to make orders to prevent workplace bullying. The new Bullying Laws and existing work health and safety laws create a potentially powerful anti-bully regime. The new anti-bullying measures mean that:
- A worker in a constitutionally-covered business, who reasonably believes that he or she has been bullied at work, can apply to the Commission for an order to stop the bullying. The Commission must start to deal with such an application within 14 days.
- If the Commission is satisfied that the worker has been bullied at work and that there is a risk that the bullying will continue, the Commission may make any order it considers appropriate to prevent the bullying continuing.
How Is ‘Bullying” Defined?
Under the new legislation, a worker is bullied if, while at work:
- An individual or a group of individuals repeatedly behaves unreasonably toward the worker, or a group of workers of which the worker is a member; and
- That behaviour creates a risk to health and safety
A “worker” has the same meaning as in the Work Health and Safety Act 2011, it is broadly defined to include any individual who performs work in any capacity for an organisation including, employees, contractors, subcontractors, outworkers, apprentice trainee, a student gaining work experience or a volunteer.
Reasonable management action carried out in a reasonable manner will not be bullying. This emphasises the rights and obligations of persons conducting a business to take appropriate management action, including responding to poor performance, taking necessary disciplinary action and effectively directing and controlling the way work is carried out.
Applications and Procedure
Once a worker makes an application to the FWC, it may make any order it considers appropriate to prevent the worker from being bullied at work. When making an Order, the FWC will consider:
- the outcomes of any investigation into the matter that is being, or has been, undertaken;
- any procedure available to the worker to resolve grievances or disputes;
- the outcomes arising out of any procedure available to the worker to resolve grievances or disputes; and
- any matters that the FWC considers relevant.
If a matter heard by FWC is referred to the state WHS regulator, an employer may need to deal with the issue on both fronts, thereby increasing the time and complexity for resolving bullying issues.
Implications for Employers
The introduction of a new avenue for bullying complaints will significantly increase employers’ exposure to claims in respect of bullying.
These changes make it all the more important for an organisation to ensure that their code of conduct, anti-bullying policy, risk management and investigation and claims process is up to date. Employers will also need to be conscious of the definition of ‘bullying’ and implement training specifically for mangers who may be involved in performance management processes. Making the factual distinction between bullying and reasonable management action may also lead to an increase in workplace investigations.
These change to the law, present yet another pitfall for employers, particularly in small business. Often the best way to deal with serious complaints and allegations is to call upon an outside investigator to test the allegations. John Dawson has been the Chair of a disciplinary tribunal of a major government agency and has practical experience in conducting investigations in the workplace.
For practical employment law advice contact John Dawson – 02 8226 5555