United States: Monthly Update—Australian Labour & Employment Nov 2013

Last Updated: December 10 2013
Article by Adam Salter and Lisa Franzini
Most Read Contributor in United States, September 2019

In The Pipeline – Highlighting Changes Of Interest To Employers In Australia


From 1 January 2014, a majority of Australian workers will have access to a new regime to deal with allegations of bullying in the workplace, opening a new industrial "battleground" for Australian employers.

The new provisions commencing 1 January 2014 will enable these bullying complaints to be heard as industrial disputes in Australia's national independent workplace relations tribunal, the Fair Work Commission (FWC), which is expecting to receive a significant number of applications and inquiries in its first year of operation.

We answer some of the key questions our clients have been asking in preparation for the introduction of this new jurisdiction on 1 January 2014.

What conduct is covered?

The Fair Work Amendment Bill 2013 (Cth) (Amendment Bill) amends the Fair Work Act 2009 (Cth) (FW Act) to give the FWC jurisdiction to hear complaints from workers who are "bullied at work".

A person is "bullied at work" where an individual or group 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. The definition includes bullying behaviour by clients or regular visitors that occurs at work.

Typical examples of workplace bullying may include unreasonable work expectations, the dissemination of malicious rumours, inappropriate practical jokes or workplace rituals, pressure to engage in inappropriate behaviour, intimidating or aggressive conduct and belittling or humiliating comments.

Reasonable management action carried out in a reasonable manner will not amount to workplace bullying. Hence, reasonable management actions that include responding to poor performance, taking reasonable and necessary disciplinary action and directing the manner in which work is to be conducted will not constitute bullying behaviour if carried out in a reasonable manner.

The FWC needs to be satisfied that there is a risk to a worker's health and safety as a result of the unreasonable behaviour. However, whether the individual has suffered adverse health and safety consequences as a result of the bullying is not determinative.

Who can make a complaint?

he Act provides that a worker in a constitutionally covered business who reasonably believes that he or she has been bullied at work will be able to apply to the FWC for an order to stop the bullying. A "worker" is defined broadly (consistent with Australia's harmonised work, health and safety (WHS) laws) and means an individual who performs work in any capacity, including as an employee, a contractor, a subcontractor, an outworker, an apprentice, a trainee, a student gaining work experience, a volunteer, a member of the Australian Federal Police or a Commonwealth statutory office holder.

A "constitutionally covered business" is conducted by a constitutional corporation, the Commonwealth, a Commonwealth authority or a body corporate incorporated in a Territory, or is a business or undertaking conducted principally in a Territory or Commonwealth place. A foreign corporation that has been formed outside of Australia is a constitutional corporation that is subject to the FWC's anti-bullying jurisdiction.

Consequently, not all workers will have the benefit of this new jurisdiction. The regime will not apply to unincorporated partnerships or associations, sole traders, volunteer associations that do not employ any workers, trusts or a State government department, and the Australian Defence Force.

What can the FWC do?

The FWC has been given a wide berth to deal with bullying claims including the power to conduct its own inquiries or research. The FWC will have the discretion to deal with complaints by contacting the parties and or arranging a mediation or conciliation conference (although the FWC is not obliged to conduct a mediation or conciliation conference).

Applications that have not been resolved at mediation will generally proceed to a preliminary conference before an FWC Member prior to a hearing for determination.

The FWC has the power to dismiss applications where it considers that the application has no reasonable prospects of success, is not made in accordance with the FW Act or is frivolous or vexatious.

What orders can the FWC make?

The FWC will make an order only if it is satisfied that the bullying behaviour has occurred and there is a risk that the worker will continue to be bullied at work, meaning that it isunlikely the FWC will make an order where a worker is no longer in the relevant employment relationship.

However, the FWC has a broad discretion to make any order it believes is appropriate to prevent the continued bullying of the worker at work and enable normal working relationships to recommence, although it cannot make an order of monetary payment.

Orders that the FWC could make include requiring:

individual/s to cease bullying behaviour;

(b) regular monitoring of the occurrence of the behaviour by the employer;

(c) compliance with anti-bullying policies, and reviews of these policies; and

(d) education and support offered to workers involved.

What are the consequences for contravening the FWC's orders?

Any contravention of an FWC order relating to workplace bullying will not amount to the commission of an offence, but will give rise to civil remedies. The worker affected by the contravention, an industrial association, or a Fair Work Inspector has six years from the date of the alleged contravention to apply to either the Federal Court, the Federal Circuit Court or any other eligible State or Territory court. Currently the maximum penalty is $51,000 (300 penalty units) for a contravention by a body corporate and $10,200 (60 penalty units) for a contravention by an individual.

Implications for employers

The new bullying jurisdiction will change the dynamics in workplaces for resolving bullying complaints. The new regime exposes employers to potentially frivolous claims, as there is no mechanism to prevent workers "abusing" the system, for example by raising frivolous or vexatious bullying claims when they receive unfavourable performance reviews.

Unlike the current unfair dismissal regime, there is no minimum employment qualifying period or high income cap that would otherwise limit the scope of potential claimants. Consequently, employers who fall within the definition of "constitutionally covered business" will need to be mindful that everyone in their business, from the volunteer work experience student to the CEO, will be able to take advantage of the new jurisdiction from 1 January 2014.

It is possible that the new Coalition-led Federal Government will seek to amend the current provisions for the handling of bullying complaints, having been critical of the process proposed when the Amendment Bill was being debated in Parliament. However, at this stage no amendments have been proposed, although it has been suggested that an intermediary like a worker's compensation agency should approve all claims before they proceed to the FWC.

New And Noteworthy – Identifying Key Developments In Australian Labour Regulation


Having won the Federal election in September 2013, the Abbott-led Federal Government has begun implementing its industrial relations policy, so we haved highlighted some of the recent developments.

Return of the Construction Industry Watchdog

Earlier this month, the Coalition submitted a Bill in the Lower House of parliament to re-introduce the Australian Building and Construction Commission (ABCC) as foreshadowed in our October Update. The construction industry watchdog, originally established by the Howard Government in 2005, was shut down in the final months of the Labor Government and replaced by the Fair Work Building and Construction (FWBC) inspectorate. It may be some time before the Bill becomes law however, as the configuration of the current Upper House is unlikely to pass the Bill. A new Senate will commence sitting on 1 July 2014, at which time the Bill is more likely to pass the Upper House (Senate) with the support of additional Coalition Senators. Employers in the building and construction industries should pay close attention to the progression of the Bill through the Federal Parliament, as the newly established ABCC is likely to introduce a number of additional reporting obligations. The proposed ABCC Bill also includes a provision giving the Commission powers to stop picketing of building sites.

Consultation for Roster Changes

The Fair Work Commission (FWC) has recently released a draft consultation clause to be included in modern awards as of 1 January 2014, when the employer's duty to consult employees about roster changes takes effect. The new requirement is contained in s 145A of the Fair Work Act 2009. The FWC has stressed that the proposed clause is not binding on employers and has requested that any interested persons wishing to comment on the proposed variation file a written submission with the FWC by 6 December 2013.

A New FWC Appeals Body Under Consideration

Meanwhile, Employment Minister Eric Abetz has announced that the Federal Government is considering the introduction of an appeals body to review FWC decisions. The reform is currently in consultation stage with the Minister's office seeking submissions by 13 December 2013. Although any potential implementation is at least several months away, employers are encouraged to keep abreast of media discussions for any further announcements.

Delays to Superannuation Increases

The new Federal Government has also indicated that it is likely to delay the introduction of previously announced increases to the level of compulsory superannuation contributions by two years. Employers should take this delay into account when reviewing salaries and budgeting in future years.

Did You Know?

The FWC released its annual report earlier this month, announcing that applications to approve enterprise agreements dropped by 17% in 2012-2013. The report noted that the Commission approved 90% of single enterprise agreements within 54 days of lodgement and cut the time for multi-enterprise agreements, with 90% approved within 64 days.

The Tribunal also reported that for the first time it received over 4,000 unfair dismissal applications in the September quarter—a 5% increase on the previous year. The vast majority of claims were settled at conciliation, with only 167 determined by the Tribunal, and in only 55 of those cases the dismissal was found to be unfair.

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.

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.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions