Australia: Increase in WHS legal risks with workplace bullying

The new anti-bullying powers to be exercised by the Fair Work Commission (FWC) from 1 January 2014 will fundamentally change the legal landscape and the way organisations will manage instances of workplace bullying.

The new laws mean that, for the first time, organisations will be subject to the powers of the industrial relations umpire, as well as work health and safety (WHS) regulators for workplace bullying.

This article considers the impact of the new laws and what organisations should do to manage the increased risk.

The anti-bullying provisions

The new anti-bullying provisions in the Fair Work Act 2009 (FW Act) enable a worker who believes they have been bullied at work to apply to the FWC for an order. If the FWC is satisfied that bullying has occurred and there is a risk it will continue, it can make any order it considers appropriate to prevent the worker being bullied. The only limitation on the scope of the orders that can be made is that an order cannot include the payment of a pecuniary amount.

The type of orders that the FWC could issue include requiring an organisation to:

  • comply with its internal workplace bullying policies
  • provide necessary information, support or training to the worker, and
  • undertake a review of its workplace bullying policies.

The FWC must start to deal with a bullying application within 14 days.

Matters referred to the WHS regulator

Seeking an order from the FWC is likely to be the first formal step a bullied worker will take; however, the matter may not end there. Under the new laws, as identified in the Explanatory Memorandum (EM) for the Bill that introduced the new measures into the FW Act, the FWC "may refer the matter to a WHS regulator where it considers this necessary and appropriate". The EM goes on to clarify that "WHS regulators should not perceive individual remedies [in bullying matters] as a replacement for penalties enforceable under WHS and criminal legislation".

As well as the referral of workplace bullying by the FWC to WHS regulators, the worker, colleagues or the union may also make a complaint to the WHS regulators. This could lead to an increase in the likelihood that a worker's bullying complaint, despite having been dealt with by the FWC, will be investigated by the WHS regulator.

If the FWC issues an order that bullying has occurred, the WHS regulator could use this as prima facie evidence of a failure to provide the worker with a safe workplace in breach of work health and safety legislation. This could lead to a thorough and targeted investigation by the regulator into the incident. If the regulator determines that an organisation has failed to take reasonably practicable steps to prevent the bullying occurring, the organisation, its officers and workers could be prosecuted for the offence.

By way of example, an order requiring an organisation to comply with its own internal workplace bullying policies could be used as evidence of an organisation's failure to properly enforce the policies. Likewise an order requiring an organisation to review its policies could be used by the WHS regulator as evidence that the policies are inadequate to ensure a safe workplace. Both could be used by the regulator to demonstrate a breach by the organisation of its WHS obligations.

Officer exposure

Officers in jurisdictions with harmonised WHS legislation could be prosecuted over bullying incidents where an investigation by the regulator identifies the officer has failed to exercise their due diligence obligations. An example of a breach by an officer of their due diligence obligations could arise from a failure by the officer to ensure that the organisation:

  • has available for use, and uses, appropriate resources and processes to eliminate or minimise the risks of bullying to health and safety, or
  • has, and implements, processes to enable the organisation to comply with its WHS obligations.

Precautions for employers

To minimise legal exposure arising out of workplace bullying incidents, organisations will need to take a "whole of business" approach to managing workplace bullying. Organisations should ensure that their workplace bullying policies and procedures are fit for purpose and communicated and enforced in the workplace. Human resources and WHS personnel should work together to ensure a coordinated approach to managing workplace bullying complaints. Knowledge, information and expertise should also be shared to develop the best strategy for the organisation.

Given the potential snowball effect of an order issued by the FWC, organisations should take all appropriate steps to avoid the order being issued in the first place. This means properly preparing and dedicating the necessary resources to defend an FWC workplace bullying application. Organisations should endeavour to present evidence that addresses the facts of the complaint and the issue of whether there is an ongoing risk of the bullying occurring. This could include providing evidence of any investigatory and disciplinary steps that have been taken.

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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