From 1 January 2014, the Fair Work Amendment Act 2013 (Amendment Act) will allow a worker who has been bullied at work to apply to the Fair Work Commission (FWC) for an order to stop the bullying. A worker is defined with reference to the harmonised work health and safety legislation in operation across most of Australia. It is essentially an individual who performs work in any capacity, other than a member of the Defence Force. This means that employees of contractors, labour-hire workers and volunteers will all be able to apply to the FWC in relation to any bullying they say has occurred while they are at work for an employer.
A worker is 'bullied at work' if:
- the worker is working in a 'constitutionally-covered business' (that is, a business conducted by a constitutional corporation; the Commonwealth; a Commonwealth authority; a corporation incorporated in a Territory or a business conducted principally in a Territory or Commonwealth place. Please seek our advice if you are unsure whether your business is 'constitutionally covered')
- an individual or group repeatedly behaves unreasonably towards the worker or a group of workers including the worker
- that behaviour creates a risk to health and safety.
Note that this definition differs from the definition adopted by WorkSafe Victoria in its October 2012 guide.
Reasonable management action carried out in a reasonable manner does not constitute bullying.
The need for prompt action in bullying matters is reflected in the requirement that the FWC must start to deal with a worker's application within 14 days after the application is made.
The FWC may make an order to stop bullying where the FWC is satisfied that the worker has been bullied at work and there is a risk that the worker will continue to be bullied at work. In considering the terms of the order, the FWC must take into account:
- any final or interim outcomes of an investigation by any person into the matter (this would include an investigation conducted by the employer or by the relevant workplace health and safety regulator)
- any procedure available to the worker to resolve grievances or disputes, as well as the outcomes of those procedures
- any matters that the FWC considers relevant.
The FWC is not empowered to order reinstatement or the payment of compensation to the worker. If a person, or corporate entity, to whom an order applies contravenes that order, a court may impose a penalty on that person of up to $10,200.
What now for employers?
Don't wait until these provisions take effect to manage workplace bullying. A pro-active approach will put you in the best position to deal with an application made to the FWC. Accordingly:
- review bullying policies for compliance with workplace health and safety legislation and ensure that policies and procedures contain clear procedures for the resolution of complaints
- train workers (including contractors, trainees and volunteers) in the content of bullying policies and options for stopping bullying behaviour
- train managers and supervisors in the definition of bullying and how to manage bullying complaints sensitively and expeditiously. They should know that this does not necessarily mean proceeding immediately to an investigation, as it may be that the conduct complained of is, if proven, not capable of being a risk to health and safety even if it is inappropriate.