The Federal Government's proposed introduction of a specific
complaint process for workplace bullying, with quick and cheap
access to the Fair Work Commission, recognises the serious impact
of workplace bullying and its importance as a work health and
It could however potentially lead to employees bypassing their
employers' own internal anti-bullying procedures.
What is – and isn't –
The Fair Work Act will be amended to define bullying, harassment
or victimisation as "repeated, unreasonable behaviour directed
towards a worker or a group of workers that creates a risk to
health and safety".
Bullying however will not include reasonable management
practices, such as performance management conducted in a reasonable
Taking a bullying complaint to the Fair Work
The Fair Work Commission will be required to list a complaint
for initial consideration within 14 days. It can make orders to
deal with the complaint on a final basis, or refer the matter to
the relevant state work health and safety regulator.
If it chooses to deal with a complaint on a final basis, the
Fair Work Commission can impose penalties of up to $33,000, as well
as make various orders, such as:
making orders requiring the employee's employer to do, or
not do, certain things to resolve the bullying complaint and
prevent further bullying;
making orders relating to the employee, or other employees at
the workplace, if required; and
publishing the orders to assist in preventing further bullying
at the workplace.
In addition to providing for the Commission to refer complaints
to state work health and safety regulators, the announcement also
provides for an expanded educative role for Safe Work Australia. It
will work with the States and Territories to develop training for
managers and health and safety representatives to help them to
better deal with workplace bullying.
What will this mean for employers and
Traditionally, there has been no specific national jurisdiction
dealing with allegations of workplace bullying, with cases being
fit within the framework of laws dealing with discrimination,
dismissal, adverse action, work health and safety, as well as
personal injuries. While there have been many adverse action claims
made to the former Fair Work Australia in relation to compliance
with laws and allegations of bullying creating an unsafe workplace,
this amendment will clearly define bullying as a separate cause of
action. It remains to be seen how the proposed amendments will
interact with these existing statutory and common law causes of
What is clear is that for a bullied employee, the fast-track to
the Fair Work Commission could induce them not to attempt going
through their employer's own processes, but to go straight to
the Commission. This however will not necessarily result in a quick
resolution, as the complaint could be referred on.
Even if a complaint is referred to a state WH&S regulator,
the Fair Work Commission could retain a role if the employee also
makes an adverse action claim (for example, if he or she alleges
dismissal as a result of making the bullying complaint).
No draft legislation has been released, but the Government has
said it intends to have the changes implemented by 1 July 2013.
Clayton Utz communications are intended to provide
commentary and general information. They should not be relied upon
as legal advice. Formal legal advice should be sought in particular
transactions or on matters of interest arising from this bulletin.
Persons listed may not be admitted in all states and
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Treasurer Scott Morrison recently announced changes to a number of 2016 Budget superannuation contribution measures.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).