While there was considerable 'colour and movement'
around the Fair Work Commission's (FWC) anti-bullying powers -
after the first 12 months of operation the laws have substantially
been a non event. Out of over 500 applications that have been
filed, just two anti-bullying orders have been made by the FWC.
Whilst these are modest indeed, there is real scope for many more
orders to be made given nearly 1 in 10 Australian workers say they
experience bullying at work.
That is why the seeming 'slow-burn' early impact of the
FWC's bullying powers should not lull businesses into thinking
that bullying is not a significant workplace issue for them now and
into the future.
Bullying comes with significant cost, both financial and
personal, so it is right that this area of workplace misbehaviour
is being targeted so directly.
The FWC's anti-bullying powers are essentially based on
existing legal principles found in workplace health and safety
legislation and common law. For instance, existing Commonwealth and
State workplace health and safety laws all reflect the following
A person conducting a business has the primary duty of care to
ensure that workers and other people are not exposed to health and
safety risks arising from the business. This includes both physical
and psychological risks (Workplace Health and Safety Act 2011 (NSW)
(WHS Act) s19).
Officers, such as company directors, must exercise due
diligence to ensure the business complies with the WHS Act and
Regulations (WHS Act s27).
Workers including employees, contractors, subcontractors,
labour hire employees, outworkers, apprentices or volunteers have a
duty to take reasonable care for their own health and safety and to
take reasonable care for that of others. Significantly they must
comply and co-operate with any reasonable policies and procedures
of the person conducting the business. This includes a workplace
bullying policy (WHS Act s28).
Other people at a workplace, such as visitors and clients, have
similar duties to that of a worker (WHS Act s29).
Similarly, under common law, an employer's failure to take
reasonable care for the safety of its workers, including complying
with these important workplace health and safety obligations, may
give rise to an action in tort. This is just as much the case in
respect to a psychological injury as it is a physical injury.
Workplace bullying remains a key workplace health and safety
issue. It can affect anyone who is working, including employees,
managers, volunteers, clients, and apprentices, in any industry or
occupation. This is recognised in the very broad definition of
"worker" contained in the Fair Work Act 2009 (FW
Australian workforce surveys consistently show that at least 10%
of workers have suffered from some form of bullying. For employees
with a disability, this figure can be as high as 29%. Further,
about one quarter of employees surveyed state that they have
witnessed bullying or harassment in the previous 12 months.
The cost to organisations has been estimated to be in the
billions of dollars each year. The impact on individual workers
includes anxiety, depression, post-traumatic stress disorder and
even incidents of suicide which have been linked to workplace
Workers affected by bullying experience lower levels of
motivation and job satisfaction and higher levels of absence due to
stress. The description of a workplace environment as being
"toxic" is all too common an expression. Other workers
caught up in that environment don't fare that much
What does this mean for employers? In simple terms it means
don't ignore bullying as an issue.
Time and again those employers that have (and actually
implement) an anti-bullying policy are those which don't have a
bullying problem. If an issue of bullying does arise the policy
provides a template for dealing with it. The FW Act specifically
requires the FWC to have regard to whether an employer has and has
complied with an anit-bullying policy.
In this day and age it would be a very foolish employer indeed
that does not have an anti-bullying and harassment policy that
provides for a fair and transparent system for notifying and
dealing with complaints.
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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