The Fair Work Act 2009 (Cth) has been amended to include an anti-bullying jurisdiction that will commence on 1 January 2014 (New Bullying Laws). The New Bullying Laws and existing work health and safety laws (WHS Laws) create a potentially powerful anti-bully regime.
The New Bullying Laws mean that a worker can make an application to the Commission if they reasonably believe they are being bullied at work (Stop Bullying Application). The relevant process is summarised in this diagram and discussed below.
The New Bullying Laws refer to a "worker" having the right to make an application, rather than an "employee". The term worker, consistent with WHS Laws, is broadly defined to include any individual who performs work in any capacity for an organisation including, employees, contractors, subcontractors, outworkers, apprentices, trainees, work experience students or volunteers. This means that organisations may be the subject of Stop Bullying Applications brought by persons other than their employees.
Under the New Bullying Laws, a worker is bullied if, while the worker is at work:
- an individual or a group of individuals repeatedly behaves unreasonably towards the worker, or a group of workers; and
- that behaviour creates a risk to health and safety.
Reasonable management action carried out in a reasonable manner will not be bullying.
The Commission may make any non-pecuniary order it considers appropriate to prevent the worker from being bullied (Stop Bullying Order), if in fact the worker has been bullied at work and there is a risk that the worker will continue to be bullied.
When making a Stop Bullying Order, the Commission will consider:
- the outcomes of any investigation into the matter that is being, or has been, undertaken;
- any procedure available to the worker to resolve grievances or disputes;
- the outcomes of any procedure referred to above; and
- any matters that the Commission considers relevant.
The link between the New Stop Bullying Laws and the WHS Laws
A Stop Bullying Application will be made by an individual worker, however, WHS Inspectors can also prosecute organisations and individuals in relation to the same matters. Indeed, the Commission can refer matters to the WHS Regulator.
It will not assist a defendant who is being prosecuted under WHS Laws for bullying, if they are already the subject of a Stop Bullying Order for the same bullying incidents. Defence lawyers will argue against the admissibility of a Stop Bullying Order in a WHS prosecution, however, if such an Order does come to the court's attention it may be evidence that:
- bullying has occurred in the relevant workplace;
- the organisation had not taken all "reasonably practicable" steps to stop the bullying; and
- the officers of the relevant organisation did not take "reasonable steps" to ensure that the organisation had in place, and used, adequate resources and processes to ensure the health and safety of workers.
WHS breaches attract significant criminal sanctions, including fines of up to $3 million for corporations, $600,000 for officers and $300,000 for workers and/or 5 years' gaol. Recent case law also suggests that organisations and individuals who are insured for financial penalties will receive higher penalties than uninsured persons and further, may be more likely to attract a custodial sentence.
Ensure your organisation minimises bullying and is able to defend claims
Organisations must ensure their compliance systems minimise bullying and include:
- Appropriate risk assessment systems and corresponding control measures to mitigate against the risk of bullying and its effects; and
- Control measures such as strong:
- policies that state that bullying will not be tolerated by anyone including senior staff;
- training programmes for all levels of staff about the organisation's policies and the delivery of skills to deal with instances of bullying when they occur;
- modelling of the correct behaviours by senior staff;
- informal and formal complaints handling procedures that are well publicised in the organisation and easily accessible;
- credible investigation procedures that increase the likelihood that:
- staff will trust those processes and their outcomes (reducing the likelihood of third party intervention); and
- the organisation's decisions will be defensible if they are reviewed by a third party.
We are running a half day workshop in Sydney on the new bullying laws on 30 August. To find out more please click here.
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.