Australia: Fair Work Commission's new bullying powers confirmed

The Federal government has passed its much anticipated anti-bullying amendments to the Fair Work Act 2009 (Cth) (Act), which will come into effect on 1 January 2014.

As explained in our previous article , the changes arose out of a Federal parliamentary committee report entitled Workplace Bullying "We just want it to stop", which issued various recommendations in October 2012, and attempted to address this increasingly prevalent, but not well understood, workplace issue.

The changes create a significant new landscape for employers, including increased exposure and the potential to blur the line between legitimate workplace health and safety concerns and traditional employee relations issues.

What are the changes and who is covered?

The anti-bullying provisions (contained in a new Part 6-4B of the Act) allow "workers" who reasonably believe they are being "bullied at work" to apply directly to the Fair Work Commission (Commission) for an order to stop the bullying. There is no income cap restricting those who can apply for an order.

The term "worker" adopts the meaning from the Work Health and Safety Act 2011 (Cth) (WHS Act), which is significantly broader than the traditional concept of "employee". A "worker" includes anyone who carries out work for a business, including contractors, sub-contractors, outworkers, apprentices, trainees, a student gaining work experience or a volunteer. However, members of the Defence Force or volunteer associations, partnerships and sole traders are excluded.

When is a worker bullied at work?

A worker is bullied at work if, while the worker is at work, an individual or group of individuals repeatedly behaves unreasonably towards the worker and that behaviour creates a risk to health and safety. This means the behaviour must be persistent and sufficient for the Commission, having regard to the circumstances, to consider the conduct as unreasonable.

Importantly, for bullying to have occurred it must have taken place "at work". What this means will be the subject of some consternation for employers, particularly where work is increasingly conducted offline and interactions between colleagues via social media extend the notion of a traditional workplace.

When is behaviour not bullying?

The new provisions expressly exclude from the definition of bullying "reasonable management action carried out in a reasonable manner". This aligns with the exception to a compensable claim that has existed for many years in some state and territory workers compensation legislation.

The philosophy behind this exclusion is that employers should have the freedom to make appropriate and robust management decisions, including as to poor performance, misconduct and the direction and quality of work practices, which may not always be to the liking of an employee.

These actions will not be bullying if they are reasonable and carried out in a reasonable manner.

What can the Commission do?

The Commission has a wide scope to deal with a bullying application but the process it will adopt is not entirely clear at this stage. Once an application is filed, the Commission must start to deal with it within 14 days, including by taking any steps necessary to properly inform itself of any matters it considers appropriate. As with other workplace claims, employers and co-workers may be summonsed to attend a hearing or conference, or to produce documents.

The Commission may make an order that the bullying stop if it is satisfied that bullying has occurred and there is a risk it will continue to occur. Those orders can be issued against the employer, co-workers and visitors to the workplace, including union organisers, but cannot include financial penalties, reinstatement or compensation.

There is no time limit on the making of an application. This means that as long as the worker remains in the workplace and there are circumstances existing that pose a risk of future bullying behaviour, a worker may wait some time before utilising these mechanisms. Further, an order of the Commission will not preclude a worker from commencing other proceedings that they may be eligible to pursue under the Act, such as unfair dismissal or general protections applications, or under the WHS Act or other state or territory based work health and safety legislation.

What does this mean for employers?

These amendments have the potential to significantly alter the workplace practices of employers, including in the following ways:

  • there is no requirement for the worker to first raise the bullying issue internally in the workplace. Employers are now faced with the risk of having to deal publicly with bullying allegations that the worker has not sought to resolve at the workplace level, including, for example, under a dispute resolution clause of an enterprise agreement. It also raises the spectre of unions using the new laws as a device to combine industrial relations activity with legitimate health and safety concerns;
  • there will be greater scrutiny and expectation around performance management processes undertaken by employers. Not only will workers have the option of using the new provisions as a lever during performance management processes if they perceive those processes to be unreasonable, the performance management practices of the employer will also be open to public analysis and potential criticism by the Commission, should an application be filed;
  • the lack of clarity around what constitutes "at work" exposes employers to claims arising from social media interactions or as a result of flexible working arrangements. The coming months are a good opportunity to ensure your workplace policies, including grievance procedures, are up to date, particularly with respect to social media and equal opportunity issues;
  • the amendments create an entirely new workplace right. Accordingly, any application, or threat to make an application, by a worker may trigger the general protections provisions of the Act. This increases the exposure of employers to adverse action claims; and
  • the power of the Commission to make orders upon finding that bullying occurred may result in an increase of successful workers compensation claims for psychological injury. The making of orders under the anti-bullying provisions will make it increasingly difficult for employers to defend such claims resulting from bullying.

What should employers do?

Employers should ensure that their workplace is up to an appropriate standard in:

  • having relevant and up to date policies and grievance procedures in place;
  • conducting appropriate training for managers and staff on bullying, discrimination and harassment issues;
  • ensuring that any complaints made are investigated quickly and in sufficient detail; and
  • ensuring that appropriate outcomes are implemented on completion of an investigation.

The above are all important steps in preparing for the new legislative framework.

Did you enjoy this update? You may also want to check out:

  1. Sexual orientation, gender identity and intersex status now protected under federal anti-discrimination legislation
  2. Workplace relations policy – what are the Federal Coalition's plans?

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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