New Anti-Bullying Jurisdiction – Are You Ready?

Employers already face significant fines under State-based occupational health & safety law if they do not take steps to prevent bullying in their workplaces. From January 2014, however, the Fair Work Commission will be able to directly intervene in workplaces by making anti-bullying orders. This new jurisdiction, while intended to reduce incidences of genuine workplace bullying, is also likely to be enthusiastically embraced by disaffected workers and their representatives.

What are the FWC’s new powers in relation to dealing with bullying complaints?

The Fair Work Amendment Act confers power on the Commission to make any order it considers appropriate (other than an order requiring payment of money) to stop a worker from being bullied at work. The Commission will be required to commence dealing with an application for an order to stop bullying within 14 days of an application. An order may only be made if the Commission is satisfied that there is a risk of continuing bullying by the same individual or group of individuals. It is intended that the focus be on resolving the matter and enabling normal working relationships to resume.

The amendment lays out potential orders which the commission may utilise, for example:

• An individual or group to stop specified behaviour
• An employer to regularly monitor employee behaviour
• Compliance with an employer’s workplace bullying policy
• Support and training, or a review of an employer’s workplace bullying policy

The new legislation also empowers the worker to nominate another appropriate outcome.

Breaching a Commission order will attract civil penalties.

What is ‘bullied at work’?

A new definition of “bullied at work” was also introduced into the Act. A worker is “bullied at work” if an individual or group repeatedly behaves unreasonably towards that worker and that behaviour creates a risk to health and safety.

Potential implications for employers

From 1 January 2014, a worker who claims they are being bullied at work can bypass their employer and go straight to lodging a complaint with the Commission. Employers may not have sufficient time to properly investigate the matter and deal with the claim appropriately before the Commission deals with the complaint.

Moreover, the new legislation seems to make bullying claims easier to lodge with little risk in relation to costs should the claim be unsuccessful. This could see an unintended influx of “bullying” complaints which really relate to reasonable management action (such as performance management and restructures).

Tips for employers

Before 1 January 2014, employers should:

• Be familiar with the new workplace bullying legislation
• Ensure their business has an up-to-date and relevant workplace policy that sets out appropriate standards of behaviour and procedures for dealing with workplace bullying
• Ensure their employees have received appropriate bullying training
• Encourage employees to first approach a manager if they believe they have been bullied. With the implementation of the new laws, an employee may bypass internal processes and lodge a complaint with the FWC however, employers should maintain a safe workplace environment where employees feel comfortable trying to resolve any issues within the workplace before seeking external remedies
• React swiftly and appropriately to any bully complaints received as an employer may have to appear before the FWC within 14 days of the complaint

HR Legal will be conducting a seminar series on Workplace Bullying – Changes to Legislation in February 2014. Click here for further information and to register.

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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.