Bullying has increasingly been recognised as a serious issue in
the workplace, in education and in the online world. Recently the
Victoria Supreme Court ordered an employer pay a bullied employee
$600,000 following their inaction over her
bullying claims. The case demonstrates the seriousness of bullying
and how important it is for employers to be proactive.
Bullying has long been addressed in workplace policies, health
and safety legislation and anti discrimination legislation. In view
of the public concern about bullying the recently passed Fair
Work Amendment Bill 2013 introduces a new concept; stop
bullying orders, which will come into effect on 1 January
STOP BULLYING ORDERS
Stop bullying orders will make it possible for individuals to
bring an application to the Fair Work Commission for an order to
stop bullying behaviour. Specifically, the amendment enables a
worker who reasonably believes they have been bullied to
apply for the order.
The definition of a worker is broad and extends past that of
just an employee. A worker includes an individual who
performs duties for an organisation including employee, contractor,
subcontractor, outworker, apprentice, trainee, work experience
student or volunteer.
The Amendment defines bullying as when;
another individual or group of
individuals repeatedly behaves unreasonably towards the worker, or
a group of workers of which the worker is a member;
that behaviour creates a risk to
health and safety.
Once an application is made to the Fair Work Commission it must
deal with that application within 14 days of receiving the
application. This may involve three steps:
informing itself of the matter;
having a conciliation conference; and/or
holding a hearing.
At this stage the Commission will only be able to make an order
stopping someone, generally the alleged bully, from behaving a
certain way. Such an order will be made if the Commission
there has been bullying; and
there is a risk of it continuing.
The Commission will also take into account any investigation,
being undertaken or concluded, and any dispute resolution
procedures already utilised or open to the worker.
THE EFFECT OF THE STOP BULLYING ORDER
The effect of this legislation is supposedly to stop whatever
bullying behavior may be occurring within a workplace. Given that
most bullying claims often amount to no more than personality
disputes between colleagues, we hold real concerns as to the
effectiveness of this measure. However, the simple fact that such a
claim is made in a public forum, rather than having been dealt with
internally may be grounds for a claimant to allege inactivity on
the part of the employer. Further, once a stop bullying order is
made, a breach of such an order can also result in substantial
Stop bullying orders may also be considered by health and safety
authorities and possibly provide evidence of a breach of a health
and safety act duty to provide a safe place and system of work.
However, in reality this is far less common.
It is yet another level of complication and regulation being
thrust upon employers and the cost of dealing with such a claim in
a public forum is inevitably expensive in time and money.
Accordingly, despite our reservations about the wisdom of this new
legislation, employers would be wise to review their policies and
workplace cultures to avoid being shamed by a stop bullying order
in the New Year.
Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).