Under the new laws, "workers" (which includes not only
employees but contractors, subcontractors, trainees, etc) can apply
to the Fair Work Commission (Commission) if they
believe they are being bullied at work by an individual or group of
individuals (which may be co-workers or could conceivably be
visitors, clients, etc). If the Commission is satisfied that the
worker has been bullied, and there is a risk the worker will
continue to be bullied, the Commission may make any order it
considers appropriate (other than an order requiring payment of a
monetary amount) to prevent the worker from being bullied. As the
laws require there to be a risk that the worker will continue to be
bullied, only currently engaged workers (and not workers who are no
longer engaged/employed) can bring a claim.
What orders can the Commission make?
The Commission has recently released a Case Management
Model and Benchbook which provide some
useful information on the way in which the Commission will deal
with these bullying claims. What is apparent is that the
employer/principal of the "worker" will definitely be a
party to any bullying claim (even where a claim is made against an
individual bully directly) and will likely be subject to any orders
made by the Commission. The alleged "bully" or bullies
will also be required to participate in the process.
The Case Management Model suggests orders will be aimed at
resolving the matter and enabling normal working relationships to
resume, and could include orders such as:
An individual or group to stop behaviour;
Regular monitoring of behaviour by employer;
Compliance with an employer's policy;
Provision to workers of information; and/or
Support and training, or review of employer's policy.
Reasonable Management Action
The new laws provide that "reasonable management action
carried out in a reasonable manner" will not constitute
bullying. The Benchbook indicates the following actions may,
depending on the circumstances, be considered as reasonable
ongoing meetings to address underperformance;
counselling or disciplining a worker for misconduct;
investigating alleged misconduct;
refusing an employee permission to return to work due to
What should your organisation be doing?
Given the new laws, we would recommend that all organisations,
as a minimum:
have in place a written policy which prohibits workplace
have in place up to date work health and safety policies;
have in place a complaint or grievance handling procedure which
enables workers to raise complaints of bullying; and
investigate allegations of bullying.
Importantly, the new laws do not prevent a work health and
safety regulator (such as WorkCover NSW, WorkSafe Victoria etc)
from bringing a prosecution against an employer for a breach of the
Work Health and Safety legislation in relation to the same
incident. For that reason we strongly recommend organisations
contact their external legal advisors at the earliest available
opportunity in relation to any allegations of bullying or
harassment, to ensure appropriate legal professional privilege can
be established. This may prove invaluable if the organisation
subsequently faces a WHS prosecution.
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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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.
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