Australia: Bullying in the workplace and flexibility arrangement amendments

On 21 March 2013, the Fair Work Amendment Bill was introduced to Parliament in response to a parliamentary inquiry by the House of Standing Committee on Education and Employment. It is expected that these amendments will take effect on 1 July 2013.

Two of the areas that the Bill addresses that employers should take note of are the bullying at work and flexibility arrangement amendments.

Bullying amendments

The Bill defines bullying at work as repeated behaviour that is unreasonable and creates a risk to the health and safety of a worker or group of workers by an individual or group. Curiously, this definition suggests that one-off acts of bullying will not be included in this definition.

The Explanatory Memorandum clarifies that the use of the words "repeated behaviour" refers to the persistent nature of the behaviour and can refer to a range of behaviours over time. It further explains that "unreasonable behaviour" is behaviour that a reasonable person, having regard to the circumstances, may see as unreasonable (an objective test). This would include (but is not limited to) behaviour that is victimising, humiliating, intimidating or threatening1.

The Bill also takes into consideration the need for employers to be able to manage their staff. As such, reasonable management action when carried out in a reasonable manner will not result in a person being "bullied at work".

How will the bullying amendments affect employers?

The Bill enables a worker, who is bullied at work, to apply to the Fair Work Commission (FWC) for an order to stop the bullying. The FWC must start to deal with this application within 14 days. The FWC's orders are limited to preventing an employee from being bullied and cannot include orders of reinstatement, compensation or pecuniary penalties. Examples of the orders that can be made include an order requiring:

  • an individual or group to stop the specified behaviour
  • regular monitoring of behaviours by an employer
  • compliance with an employer's workplace bullying policy
  • provision of information and additional support and training to workers, and
  • the review of the employer's workplace bullying policy2.

The Bill also provides that a person subject to an order by the FWC must not contravene the order. This is a civil remedy provision.

It should also be noted that the FWC may refer a matter to a work health and safety (WHS) regulator. It follows that an order by the FWC will not prohibit an employee from bringing civil proceedings under the Work Health and Safety Act 2011 (Cth) for discriminatory or coercive conduct.

The government is yet to announce whether any additional resources are going to be provided to the FWC to deal with these complaints. This will be an important consideration, bearing in mind that the "general protections" claims introduced by the Fair Work Act 2009 (Cth) resulted in 1,106 applications to the FWC's predecessor in the six months to December 2012 (in addition to 7,388 unfair dismissal applications over the same period–these figures were up 23% and 10% over the same period in 20103).

The effect these changes will have on employers, and the capabilities and resources of the FWC to deal with the expected increase in complaints, shall guarantee some very interesting times ahead. In the meantime, we suggest that you ensure that your workplace bullying policies are up-to-date.

Flexibility arrangement amendments

The Bill also significantly expands the scope of the right to apply for flexible working arrangements under the Fair Work Act. It extends the entitlement to include workers who:

  • are parents or have the responsibility for the care of children who are of school age or younger
  • are carers within the meaning of the Carer Recognition Act 2010 (Cth)
  • have a disability
  • are 55 years of age or older
  • are experiencing violence from a member of their family, or
  • provide care or support to a member of their immediate family or a member of their household who are experiencing family violence.

Employers may refuse a flexibility request based on reasonable business grounds. The Bill outlines a non-exhaustive list of reasonable business grounds, which includes:

  • that the new working arrangements requested are too costly to the employer
  • no capacity to change the working arrangements of other employees to accommodate the requested working arrangements
  • that it would be impractical to change the working arrangements of other employees, or recruit new employees to accommodate the new working arrangements
  • that it will result in significant loss in efficiency or productivity, or
  • that there will likely be significant negative impact on customer service.

Transfer to a safe job

The Bill also removes the Fair Work Act's previous requirement that a pregnant employee must have completed 12 months' service to request a transfer to a safe job. Under the amendments, all employees are entitled to this, regardless of the length of their service.


1 Fair Work Amendment Bill 2013, Explanatory Memorandum, at [109], page 29.

2 Fair Work Amendment Bill 2013, Explanatory Memorandum, at [120], page 30.

3 Fair Work Commission Annual Report 2010-2011; Fair Work Commission Annual Report 2011-2012.

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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