As reported to our readers on 19 June 2013 in "
What's in the nature of a bully?", new anti-bullying
laws were proposed (and subsequently passed), giving the Fair Work
Commission (FWC) jurisdiction to hear bullying complaints and issue
appropriate orders on and from 1 January 2014. The Coalition
Government has indicated it will keep these laws with one possible
amendment adding in a "preliminary step" before FWC
becomes involved – we will keep readers updated if and when
Interaction with WHS
The anti-bullying laws rely on the WHS definition of worker,
that is, a worker has been bullied. This increases the scope of
those able to seek redress through the FWC beyond employees to
contractors, subcontractors, the employees of
contractors/subcontractors, apprentices, worker experience students
and volunteers (to name a few).
Involvement of WHS Regulator(s)
Part of the new anti-bullying laws allows the FWC to make any
order it considers appropriate (other than a pecuniary order) where
it is satisfied that a worker has been bullied and there is a risk
that the bullying will continue. The FWC may also refer the matter
to a WHS Regulator.
Where such an order is made, this could be used by WHS
Regulators (eg WorkCover NSW) in relation to prosecutions for
breaches of WHS laws as evidence that bullying has occurred (and
thus comprising a risk to health and safety). Such evidence could
highlight the absence of the organisation taking reasonably
practicable steps to prevent the bullying conduct and also the
failure of the organisation's officers with respect to their
independent due diligence obligations.
Fines for breaches of WHS laws can be up to $3,000,000 for
organisations, $600,000 and/or 5 years imprisonment for officers
and $300,000 and/or 5 years imprisonment for other individuals.
Interaction with Workers Compensation
The anti-bullying laws expressly state that "reasonable
management action carried out in a reasonable manner" is not
workplace bullying. In terms of workers compensation, reasonable
performance management carried out in a reasonable way is a well
known exception to the payment of compensation.
On this basis, it is clear that the potential impact of a FWC
order could be that it would be used by employees to support a
workers compensation claim on the basis that the FWC could not make
such an order unless workplace bullying occurred – that is,
there was no circumstance of reasonable management action carried
out in a reasonable manner. The timeframe for FWC to begin dealing
with bullying complaints (14 days) will also make it difficult for
employers to gather enough evidence in support of its position in
Interaction with Damages Claims
Similar to the above, a FWC order would arguably constitute
evidence of workplace bullying that could be used by individuals
with respect to common law damages claims. This is not a light risk
for businesses to consider – a Victorian case in the middle
of this year awarded a worker nearly $600,000 in damages after it
found she was bullied, harassed and intimidated in circumstances
where there was an absence of any bullying and harassment
Clearly the scope of the anti-bullying laws is far reaching and
could hit many businesses from different angles at the same time,
tying up time and resources in defending multiple proceedings,
including criminal sanctions under WHS laws. On this basis, key
practical steps which should be taken by all businesses now
Review and update existing bullying, harassment, grievance and
WHS policies and procedures (or develop these where they do not yet
Contemplate developing social media and strong IT policies
– bullying can just as easily (and often does) occur in the
Train staff (officers, managers and workers) on bullying and
harassment and inform them on how they can make an internal
complaint and the informal/formal means of dealing with them.
Lead by example – culture will be a big feature in the
new laws and senior managers and officers should lead by example
and indicate that bullying conduct will not be tolerated regardless
of who engages in it (whether between co-workers or even a worker
bullying their supervisor).
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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Two model clauses, ultimately to be inserted into all modern awards, have been determined by the Full Bench of the FWC.
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