After much wait and discussion Safe Work Australia has finally
released another version of the draft code of practice
"Preventing and Responding to Workplace Bullying". This
draft code will remain open for public comment until 15 July 2013.
A copy of the draft code can be found
What is workplace bullying?
The draft code defines workplace bullying as "repeated
and unreasonable behaviour directed towards a worker or group of
workers that creates a risk to health and safety".
Although a single incident of unreasonable behaviour would not
automatically be considered workplace bullying, given the potential
for escalation of single incidents into repeated behaviour the
draft code notes that these incidents should not be ignored.
The draft code also sets out the test for unreasonable behaviour
as an objective one, namely behaviour which "a reasonable
person, having regard for the circumstances, would see as
unreasonable, including behaviour that is victimising, humiliating,
intimidating or threatening".
Notwithstanding that the typical example of workplace bullying
is usually between managers and workers, workplace bullying may
also occur sideways (between co-workers) and upwards (from workers
to managers). However the draft code makes clear that reasonable
management action taken in a reasonable way would not constitute
workplace bullying for health and safety purposes
Fair Work Amendments
As many of our readers would already be aware from the news, the
Labor Government has proposed amendments to the Fair Work Act
2009 (Cth) to introduce so-called "anti-bullying"
provisions. These provisions would allow a worker who is being
bullied at work to apply to the Fair Work Commission
(FWC) for various remedies to deal with the
bullying behaviour, including orders to stop such conduct
occurring. The FWC must begin dealing with the matter within 14
days of the complaint and there is no requirement that the worker
attempt to resolve the matter internally before going to the
The proposed amendments have yet to pass the Senate, however if
passed they will commence from 1 January 2014. We will keep readers
informed of the progress of these changes.
Get in early – comments and policies
As the draft code is open for public comment for the next month,
now is the perfect time to review the draft code, see how it will
impact on your business and make comments for Safe Work Australia
to consider (including whether you believe the definition should be
expanded or narrowed).
Given that it is unlikely the draft code will change in any
significant way employers should get in early updating their
bullying and harassment policies (and associated WHS policies),
making it clear what is and isn't bullying behaviour. This is
important as depending on the length of time that has elapsed since
such policies were amended (and employees trained in them) it may
take time for the changes to be understood at your workplace,
allowing employers to be prepared to successfully defend FWC
bullying complaints should the amendments become law by 1 January
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.
Kemp Strang has received acknowledgements for the quality of
our work in the most recent editions of Chambers & Partners,
Best Lawyers and IFLR1000.
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