Trend for 2013
The Federal Government has responded to the House of Representatives Standing Commission on Education and Employment Inquiry Report Workplace Bullying "We just want it to stop" by introducing changes to the Fair Work Act (FW Act) in the Fair Work Amendment Bill 2013, which was passed on 6 June 2013, but is still awaiting Royal Assent and a Proclamation date. The changes that relate to bullying and harassment will enable a worker who reasonably believes that they have been bullied at work to apply to the Fair Work Commission (FWC) for an order to stop the bullying. The dates relating to the bullying and harassment changes are to be fixed by proclamation, which is interesting, because some of the other changes do not take effect until 1 January 2014.
Currently the health and safety laws in each state and territory give work health safety regulators the power to investigate serious bullying complaints. Also, it is not uncommon for allegations of bullying to be raised as issues in other proceedings under general protections legislation and anti discrimination laws.
The changes amend the FW Act by defining workplace bullying as repeated, unreasonable behaviours that are directed towards a worker or group of workers, that creates a risk to health and safety. A new subsection will be included in the FW Act to clarify that reasonable management action, when carried out in a reasonable manner, will not result in a person being 'bullied at work'.
The FWC will have an obligation to deal with an application within 14 days after the application is made. The FWC will also have the power to make any order it considers appropriate to prevent a worker from being bullied at work. Examples of the orders that the FWC can make include an order requiring the individuals or group of individuals to stop the specified behaviour, regular monitoring of behaviours by an employer, compliance or review of the employer's workplace bullying policy, and the provision of information and additional support and training to workers. An order by the FWC cannot extend to ordering reinstatement or the payment of compensation. However a failure to comply with an order of the FWC may attract a civil penalty of up to $33,000.
At this stage it is difficult to assess the impact of the proposed changes. However one of the key issues identified by the Government is the need for an individual right of recourse for persons who are bullied at work to help resolve the matter quickly and inexpensively. Alternatively some employer groups are concerned that the proposed changes will give employees an avenue to pursue speculative claims which are already governed by the health and safety regulators.
In light of the proposed amendments, it would be prudent for employers to reassess their internal policies and procedures related to workplace bullying, to ensure compliance with the proposed legislative framework and promote a workplace which is free from bullying.
Other changes arising from the Fair Work Amendment Bill 2013
The other changes that arise from this amendment will be the subject of newsletters as they become an issue for employers, and include the following changes:
- provide that any period of unpaid special maternity leave taken by an eligible employee does not reduce that employee's entitlement to unpaid parental leave;
- increase the maximum period of concurrent (both parents) unpaid parental leave from three to eight weeks;
- allow that leave to be taken in separate periods within the first 12 months of the birth or adoption of a child;
- expand access to the right to request flexible working arrangements;
- require employers to consult with employees about changes to regular rosters or ordinary work hours;
- enable pregnant employees to transfer to a safe job regardless of their period of service;
- requires the FWC to take into account the need to provide additional remuneration for certain employees;
- establish a framework under which permit holders may enter premises for investigation and discussion purposes;
- expressly confers on the FWC the function of promoting cooperative and productive workplace relations and preventing disputes.
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.