The Australian Federal Workplace Relations Minister, Bill
Shorten, recently announced changes that will allow employees to
seek assistance in respect of workplace bullying from the Fair Work
The proposed new laws seek to cut through the current complex
processes available to employees under state health and safety laws
and seek early intervention in bullying claims. The new changes
will require the FWC to deal with any application urgently.
The Potential Changes
The Commonwealth Government has announced it will hurry through
amendments to the Fair Work Act 2009 (Cth) (FW Act)
creating a new cause of action in relation to workplace
The amendments are proposed to take effect from 1 July 2013.
Definition of Bullying
The changes will adopt the definition of "bullying"
set out in the Draft Code of Practice Preventing and Responding to
Workplace Bullying. "Bullying" will be defined as
"repeated, unreasonable behaviour directed towards a worker or
a group of workers that creates a risk to health and safety".
Importantly, the changes will clarify that the definition of
bullying does not include reasonable management action, including
performance management conducted in an appropriate and reasonable
Process to Resolve Complaints
Mr Shorten announced that the new process will permit workers
who believe they have been bullied to make a complaint to the FWC,
which will be required to list any application within 14 days of
the complaint. The changes will also enable the FWC to make orders
in relation to the complaint, and/or to refer the complaint to the
relevant state health and safety regulator.
Early reports suggest that any new FWC processes would be
similar to those currently in place for unfair dismissal and
adverse action complaints. This would include a compulsory
conciliation conference, which is intended to quickly resolve the
dispute to the parties' mutual satisfaction and avoid the need
for arbitration or court action.
Where conciliation is unsuccessful, the amendments to the
Fair Work Act will enable FWC to make civil orders in
respect of claims. Current penalties under the Fair Work
Act are up to AUD33,000 per breach, however, the Minister has
advised that he will consult with business before confirming such
penalties will apply.
What does this mean for employers?
Currently, victims of workplace bullying may seek to have their
complaints addressed under many different legislative regimes. If
an act of bullying is serious enough to pose a risk to health and
safety, employers and employees may be liable under the relevant
state health and safety legislation. In addition, in Victoria,
legislation created as a result of the Brodie Panlock case enables
criminal prosecutions in cases of serious workplace bullying. Both
of these actions are initiated by state prosecution authorities
rather than the individual employee.
The changes foreshadowed by the government suggest that for the
first time individual employees (rather than regulators) will be
able to bring claims against their employers for workplace
bullying. This is a significant change in workplace law and if it
proceeds is likely to result in an influx of claims from
As yet, no draft legislation has been tabled regarding these
significant changes. This is expected in the autumn session of
parliament and we will provide a further update once the
legislation is tabled.
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.
K&L Gates has been awarded a 2012 EOWA Employer of Choice
for Women citation acknowledging our commitment to workplace
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