From 1 January 2014, the Fair Work Commission (FWC) will deal with workplace bullying claims from workers within 14 days of the complaint being made, and will have powers to make orders to stop the bullying. Financial penalties will apply to employers who contravene FWC orders resulting from a bullying claim. This article looks at bullying in the current employment law landscape and then outlines the new laws and some practical steps for employers to get ready for these changes.
Until now, workplace bullying has come under the rubric of other laws including those that cover discrimination, OH&S, adverse action and unfair dismissal. Bullying-type behaviour, which may generally be described as aggressive, intimidating, insulting or humiliating behaviour, can form part of these other claims under both federal and state laws. Employees who are being bullied may also have internal avenues for redress through workplace policies. Until now, however – and despite its apparent prevalence - there have been no specific laws that identify, define and deal with ‘bullying ‘behaviour.
New anti-bullying jurisdiction
Significant amendments to the Fair Work Act were passed in June this year which include a new cause of action for workers to apply directly to the Fair Work Commission if they are being ‘bullied at work’. These changes will take effect from 1 January 2014.
The definition for ‘bullied at work’ is repeated and unreasonable behaviour that creates a risk to health and safety. Only time will tell how these two elements will be interpreted but the definition does clarify that the behaviour must be repeated, and suggests that an objective test will be applied to ascertain what is unreasonable and whether it is a risk to health and safety.
Importantly, reasonable management action (for example, performance management) is specifically identified and excluded from the jurisdiction. In practice we often see bullying-type complaints in relation to performance management and management style.
If a worker lodges a bullying claim, the FWC must deal with the application within 14 days. The FWC has been given relatively wide powers to make orders to stop the bullying if it is satisfied that the worker has been bullied and there is a risk it will continue. Financial penalties apply for contravention of FWC orders.
Interestingly, the new bullying jurisdiction covers corporations and Commonwealth (and Territory) employees but does not extend to unincorporated businesses such as sole traders and partnerships. This is an important distinction for many small businesses.
There has been a significant amount of media coverage and commentary on the new bullying laws, most of which is speculative. It remains to be seen whether the FWC will be inundated with bullying claims from January and how the FWC will interpret the new provisions. In the meantime there are some simple steps that employers can take to ensure their workplaces are ready.
Tips for employers
Employers should review their current workplace policies now; all workplaces should have a policy that specifically prohibits bullying in the workplace.
There should also be a complaints handling process so that if issues do arise employees have an internal avenue to resolve problems in the first instance.
A health check of your workplace might involve reviewing these policies and asking the following questions: Is there a workplace culture or behaviour problem? Do management model good behaviour? Does your workplace need refresher training around your workplace policies and the new bullying laws?
These few simple steps may prevent significant problems in the future and enable issues to be resolved within the workplace before they are escalated to a bullying claim with the FWC.
Sarah Waterhouse, Solicitor, BlandsLaw