Following a comprehensive review of Queensland's industrial relations laws in 2016 , the Industrial Relations Act 2016 was passed by the Queensland Parliament late last year and came into effect on 1 March 2017.
The Industrial Relations Act 2016 (the Act) repeals the Industrial Relations Act 1999.
Changes to the Industrial Relations Regulation 2011 and Industrial Relations (Tribunals) Rules 2011 have also been approved and are operative from 1 March 2017.
One of the significant changes brought about by the new Act is the introduction of new powers granted to the Queensland Industrial Relations Commission (QIRC) to deal with bullying in the workplace.
Queensland's anti-bullying measures will apply to employees of the State of Queensland, which means teachers in state schools, nurses, doctors and allied health professionals in public hospitals, and other public servants employed in various government departments.
The new Act gives power to the QIRC to make orders with the purpose of preventing workplace bullying – to be known as "stop bullying orders". The new provisions are modelled on those in the Fair Work Act 2009. Stop bullying orders have been available under the Fair Work Act since the beginning of 2014. Until now, State employees in Queensland have been unable to make applications for stop bullying orders.
What is bullying?
An employee must show that they are being bullied in the workplace.
A worker is "bullied in the workplace" if, while the employee is at work, an individual or group of individuals repeatedly behaves unreasonably towards the employee or a group of employees of which the person is a member, and this creates a risk to the health and safety of the employee.
There are a number of elements to be satisfied to meet the definition of being bullied in the workplace:
- the person alleging bullying must be an employee (s.272(1) of the Act);
- the behaviour must take place while the employee is at work (s.272(1)(a));
- the behaviour must be directed towards the employee or a group of employees of which the employee is a member (s.272(1)(a)(i) and (ii));
- the behaviour is not a one-off – it must have already happened, and there must be a risk that it will continue (s.272(1)(a));
- the behaviour must be unreasonable (s.272(1)(a)); and
- the behaviour creates a risk to the employee's health and safety (s.272(1)(b)).
Single incidents of unreasonable behaviour should not be ignored or allowed, but they are not considered bullying.
The concept of "risk to the employee's health and safety" is not defined in the Act, but applications made under the Fair Work Act 2009 have established that it is not necessary to provide proof of actual harm to health and safety, as long as it can be shown that a risk to health and safety created by bullying behaviour exists. The risk must be real, and not merely conceptual, but does not have to be imminent.
What is not bullying?
Actions that are reasonable management action carried out in a reasonable manner are not bullying (s.272(2)).
Reasonable management action can include, for example, making decisions about an employee's poor performance, taking disciplinary action, or giving directions about the way work is carried out.
The concept of "reasonable management action" also appears in the Workers' Compensation and Rehabilitation Act 2003, where it operates to prevent workers from receiving compensation if they sustain psychological injuries as a result of the reasonable actions of their employers. While the new bullying provisions are as yet untested, it can be assumed that this term will be interpreted in the same way.
What can the QIRC do?
In order to be successful in an application for a stop bullying order, the employee will have to satisfy the criteria set out above to show that the behaviour complained meets the definition of bullying.
The QIRC has been given broad powers to be able to easily and quickly deal with applications for stop bullying orders. The QIRC can make any order it considers appropriate to prevent the employee from being bullied in the workplace (s.275(2)), but will only make these orders if it is satisfied that the employee has been bullied in the workplace, and there is a risk that the employee will continue to be bullied in the workplace.
Importantly, if a stop bullying order is made, it does not entitle the applicant to any form of compensation. The orders are designed to be preventative, not punitive or compensatory.
Should an order be breached, an application for a civil penalty against the bullying party can be made to the QIRC.
When will the QIRC dismiss an application?
If an employee cannot show that their application meets the definition of bullying, it is bound to fail.
The QIRC will also consider what other avenues are available to the employee to deal with the behaviour. For example, if the QIRC considers that an investigation or grievance procedure being conducted is adequate, it may determine that a stop bullying order is unnecessary.
What does this mean for State employers and employees?
The new laws are so far untested. The stop bullying orders add another avenue for employees to address workplace issues, along with existing discrimination and workers' compensation laws.
If you would like the benefit of Holding Redlich's experience in relation to workplace bullying or any other workplace issue, please contact our Workplace Relations & Safety team.
This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.