As of 1 January 2014, there are specific provisions in the
Fair Work Act for a worker who has been bullied at work to
apply to the Fair Work Commission ("the FWC") for an
order to stop the bullying.
The provisions apply to "workers", which includes
employees, contractors, sub-contractors, outworkers, apprentices,
trainees, students gaining work experience and volunteers. They
must be "at work" for an employer who is covered by the
Fair Work Act (being the vast majority of employers).
A worker is bullied at work if an individual or group of
individuals repeatedly behave unreasonably towards the worker, and
that behaviour creates a risk to health and safety. It specifically
does not apply to reasonable management action carried out in a
If an application is made by a worker to the FWC, the FWC must
start to deal with that application within 14 days. That does not
mean that the application itself must be resolved within this time
– merely that the FWC must start to inform itself of the
matter within that period.
If the FWC is satisfied that the worker has been bullied at work
and there is a risk that the worker will continue to be bullied at
work, it may make any order it considers appropriate (other than an
order requiring payment of a pecuniary amount) to prevent the
worker from being bullied at work.
If the person to whom such an order applies contravenes a term
of that order, the person who has contravened it may be subject to
a penalty and also liable to pay compensation to the worker for
loss suffered (including for 'hurt and humiliation').
Some important points to take from these new provisions are:
To be bullying, it must be "repeated" – one
incident is not enough;
The focus is not on compensating the worker for past bullying
but stopping them being bullied in the future. Irrespective of the
seriousness of the bullying, if there is no risk of it happening in
the future (for example, because the bully has since left), no
order will be made;
The FWC cannot order payment of a pecuniary amount –
hopefully this will avoid spurious claims being made in an attempt
to obtain a payout.
There is no right to appeal from an order.
The orders will not necessarily be directed to the employer
business itself, but may be directed at individual employees (at
any level) or groups of employees.
To date, victims of bullying have relied upon causes of action
that are compensatory in nature – for example, workers
compensation claims, breaches of occupational health and safety
legislation, discrimination claims and the criminal process. The
aim of the new provisions is to stop the bullying at an early stage
and thus, hopefully, avoid the damage being caused in the first
place. The new provisions do not however replace any of the
existing causes of action – if damage is suffered, the victim
can seek compensation for that damage just as before.
The efficacy of the provisions in a particular case is likely to
depend heavily on the individuals involved and the particular FWC
representative who deals with the complaint.
It goes without saying that bullying should be avoided wherever
possible and, if it exists, stamped out. Employers should ensure
they have clear bullying policies in place and that allegations of
bullying are dealt with as quickly, fairly and effectively as
possible. The new provisions should only be necessary where the
employer's internal processes have failed.
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.
Kott Gunning is a proud member of
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
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.
Treasurer Scott Morrison recently announced changes to a number of 2016 Budget superannuation contribution measures.
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).