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
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
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
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
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
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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Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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