New Bullying and Fair Work Act Changes become Law

In a late sitting yesterday, the Senate passed the Fair Work Amendment Act 2013, approved by the Lower House earlier this month.

This will result in a range of changes to the Fair Work Act (Act), including:

• Allowing unions, if there is no agreement with employers, to hold meetings in lunchrooms;
• Expanding when employees can ask for flexible working arrangements;
• Explicitly allowing employees returning from parental leave to ask for part-time work;
• Requiring “genuine consultation” for changes to regular rosters and ordinary work hours;
• Increasing the maximum period of concurrent unpaid parental leave from 3 to 8 weeks; and
• Other leave protections, and new functions for the Fair Work Commission (FWC)

Anti-bullying protections

The most significant changes, however, relate to the new anti-bullying protections.

Under the changes, workers (including contractors) who reasonably believe that they have been bullied can apply to the FWC for orders stopping the bullying.

Bullying is defined by the changes as occurring if an individual or group “repeatedly behaves unreasonably” towards a worker, and the behaviour “creates a risk to health or safety.”

The FWC must start to deal with an application within 14 days, by eg: investigating the complaint or requesting the production of documents; conducting a private conference; or holding a hearing.

If the FWC accepts that bullying has occurred and there is a risk it will continue, it can make any orders it considers appropriate to prevent the bullying, other than reinstatement or compensation, such as:

• Requiring the individual or group to stop the bullying;
• Monitoring;
• Amending or complying with a workplace bullying policy; or
• Referring the matter to a work, health and safety regulator

A failure to comply with such orders would attract a civil penalty, of up to $51,000 per breach by a company, and $10,200 per breach by an individual.

The changes are expected to commence shortly. The anti-bullying protections will commence on 1 January 2014.

What this means for you

While employers no doubt support the removal of bullying from the workplace, there is a risk that the anti-bullying changes can be used by workers (or unions) to inhibit valid management actions. Some bodies have suggested it may also create a new form of unfair dismissals.

The changes state that bullying will not occur if the conduct is “reasonable management action” that is “carried out in a reasonable manner”. However, similar provisions in workers’ compensation legislation have proved difficult for employers to successfully rely upon.

All businesses must familiarise themselves with the changes.

They should also ensure that they have the appropriate anti-bullying, grievance and discrimination policies in place, and that managers and staff are trained in them.

Those documents will be crucial evidence of your practices, and must also be considered by the FWC before deciding to impose any orders.

If you have any questions about your new obligations, or wish to review your policies, contact us.

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This article was produced by HR Legal. It is intended to provide general information only in summary format on legal issues. It does not constitute legal advice, and should not be relied on as such.