On January 1 of this year, amendments were made to the Fair
Work Act 2009 (Cth) including the incorporation of a
'workplace bullying' definition.
The new definition:
A worker is bullied at work if:
while the worker is at work in a constitutionally-covered
an individual; or
a group of individuals;
repeatedly behaves unreasonably towards the worker, or a group
of workers of which the worker is a member; and
that behaviour creates a risk to health and safety.'
What does `behaves unreasonably' mean?
The Act does not provide a clear explanation of this phrase. The
Fair Work Commission's `Anti-Bullying Benchbook' (
found online) provides some articulation of examples of
bullying based on the case law. It includes: `aggressive and
intimidating conduct', `belittling or humiliating conduct',
`victimisation', `spreading malicious rumours', `practical
jokes or initiation', `exclusion from work related events',
and `unreasonable work expectations'.
How is `worker' defined?
The meaning of 'worker' applies the same interpretation
of a worker found within the Work Health and Safety Act
2011 (Cth). It encompasses employees, contractors, sub
contractors, an apprentice or trainee, a student on work
experience, and volunteers working in a non wholly volunteer
association. The intention of such a broad definition is to extend
the ambit of anti-bullying measures to all persons associated with
a workplace environment.
What is `at work'?
An ambiguity of the workplace bullying definition is the meaning
of `at work', and whether it encapsulates circumstances beyond
the traditional workplace. The Fair Work Commission's
`Anti-Bullying Benchbook' suggests that 'at work' may
not necessarily refer to the `place of work', or while the
worker is actively engaged in work. The Benchbook contemplates for
example, time during lunch breaks, working from home, and work
trips. It remains unknown whether the definition could apply to
cyberbullying conducted between workers during work hours and
outside of work hours (in a work context).
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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