Australia: New measures to counter workplace bullying - new work and family provisions proposed

Last Updated: 24 February 2013
Article by Charles Power

Most Read Contributor in Australia, September 2016

The Federal Government has announced a series of measures dealing with workplace bullying in response to recommendations made by a Parliamentary committee into bullying which provided a report to Parliament last year — Workplace Bullying: We just want it to stop.

These are outlined in the table below:

Proposal Comment
Permit workers who believe they have been bullied to make a complaint to the Fair Work Commission (FWC) and require the FWC to deal with any application as a matter of priority including by listing the matter for consideration within 14 days. There are several issues about this kind of application that are not clear: How is the employer involved in cases where the dispute is between its employees? Can ex-employees make an application? Can the applications be made concurrently with other applications under the Fair Work Act 2009 (Cth) (FW Act) such as general protections claims?
Specify that bullying refers to repeated, unreasonable behaviour directed towards a worker or a group of workers that creates a risk to health and safety, but does not include reasonable management practices including performance management conducted in a reasonable manner. This definition is consistent with the definition contained in Safe Work Australia's draft code of practice.
Enable the FWC to make orders to deal with the complaint, and/or refer the matter to the relevant state safety regulator. It is not clear whether the Government is going to give the FWC power to unilaterally arbitrate bullying claims or whether its role will be confined to conciliation and private arbitration by consent of both parties.
Provide for civil penalties or fines (up to $33,000 in some instances); It is not clear whether this means that the FW Act will be amended to provide a new civil penalty provision that prohibits bullying conduct, or whether it refers to the existing provisions that prohibit breaches of FWC orders.

The Minister for Workplace Relations also announced that he would require the Australian Public Service Commissioner to conduct a review (commencing in the next six months) of how the "fit for duty test" under regulation 3.2 of the Public Service Regulations 1999 (direction to attend medical examination) is used within the Australian public service.

New work and family provisions proposed

The Federal Government has announced a raft of measures that will affect rights and obligations of employers and employees covered by the FW Act. Many of these will implement recommendations made by the Review Panel commissioned in 2012 to review the operation of the FW Act.

It is anticipated that the changes will take effect on 1 July 2013. The following table summarises the proposals:

Current law Proposed change
Currently under the parental leave National Employment Standard (NES) in the FW Act if an employee has 12 months' continuous service they may take unpaid parental leave at the same time as their partner (concurrent leave) during a 3 week period commencing within a week of the birth or placement of the child. The proposal is to amend the NES so as to increase the maximum period of concurrent leave from 3 to 8 weeks and to provide for flexibility as to when this leave starts and ends.
Currently under the parental leave NES the right to 'safe job leave' is conditional upon the employee being eligible for parental leave, which in turn requires that the employee have completed 12 months' continuous service at the time of dismissal. The proposal is to amend the NES so as to provide for an entitlement to safe job leave regardless of whether the employee is eligible to take unpaid parental leave after the birth.
Currently under the parental leave NES the period of special maternity leave taken before the birth is included in the maximum entitlement to 52 weeks' unpaid leave.

The proposal is to amend the NES so as to provide that unpaid special maternity leave taken prior to giving birth is additional to the NES entitlement to take parental leave after the birth.

This follows a recommendation made by the FW Act Review Panel, which expressed the view that an employee should not be penalised for accessing special maternity leave instead of sick leave, by the consequent reduction in unpaid parental leave.

Currently under the NES in the FW Act the right to request flexible working arrangements is confined to a parent with responsibility to care for a child under school age or a child under 18 with a disability. The proposal is to amend the NES so as to extend the right to request flexible working arrangements to carers of school-aged children, elderly relatives, adult persons with disabilities and victims of domestic violence. It would also apply to the domestic violence victims themselves and to workers over 55 years of age. This follows a recommendation made by the FW Act Review Panel, based on evidence that the carers of frail, aged and other non-child dependants with serious long-term illness or disability suffered more work–life strain than carers of young children.

To date, the only 'official' guidance on what constitutes a "reasonable refusal" of a right to request flexible working arrangements is a fact sheet issued by the Fair Work Ombudsman , which cites the factors identified in the explanatory memorandum to the FW Act, as being factors that may be relevant to the question of what constitutes a reasonable refusal, namely:

  • the effect on the workplace and the employer's business of approving the request, including the financial impact of doing so and the impact on efficiency, productivity and customer service
  • the inability to organise work among existing staff
  • the inability to recruit a replacement employee or the practicality or otherwise of the arrangements that may need to be put in place to accommodate the employee's request.
The proposal is to provide further guidance for employers on what constitutes a "reasonable refusal" and require employers to advise new employees of their right to request in the Fair Work Information Statement.
Currently under the NES in the FW Act, the right to request flexible working arrangements does not define what is a flexible working arrangement (although a note in the legislation refers to examples of changes in hours of work, changes in patterns of work and changes in location of work). The proposal is to provide in the NES an express right to request a return to work on a part-time basis after taking unpaid parental leave.
Currently, a standard consultation clause is contained in all modern awards and incorporated by default into enterprise agreements if the parties do not insert their own consultation clause. This obliges the employer to consult with affected employees and their representatives where the employer decides to introduce "major changes in production, program, organisation, structure or technology that are likely to (amongst other things) alter hours of work, unless the award allows for this alteration. The employer must discuss with the employees affected and their representative, the proposed changes and give prompt consideration to matters raised by them before the change is implemented. The proposal is to change the standard consultation clause to make it clear that it applies whenever an employer proposes changes to rosters or working hours – regardless of whether the change is the result of a major change and irrespective of whether the award provides for the employer's right to make changes to rosters and working hours. It will not apply to award/agreement-free employees.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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