By Stephen Keens
Key Business Advisors HR Team Manager
There has been an increase in the number of workplace bullying complaints and claims against clients over the last six months compared to the last few years. With the recent amendments to the Fair Work Act 2009, employers are likely to see a further spike in speculative claims of workplace bullying from employees who are under performance management or disciplinary action.
The process for dealing with bullying as set out in the Fair Work Amendment Act 2013 seeks to strengthen attempts at, and the effects of, intervention in the early stages of any potential workplace bullying so as to put a stop to it before any negative impact on an employee’s health and wellbeing. However, the downside is that employers may incur greater time and financial costs in dealing with bullying complaints and lose the opportunity to internally address bullying before a complaint is escalated to an external body. Therefore, it is critical that employers:
- Develop, make available, and train all employees, contractors and consultants on, sound anti-bullying and harassment policies in order to minimise the risk of bullying occurring in the first instance, as well as to manage and respond to any allegations of bullying that do arise;
- Facilitate and record regular training to identify and manage potential workplace bullying behaviour;
- In quarterly management meetings, record and report anti-bullying strategies; and
- Be prepared to participate in any meeting or conciliation listed by the FWC. Being able to point to any anti-bullying policies and procedures that are already in place within the business or organisation will assist in this process.
The Fair Work Commission’s Anti-Bullying Jurisdiction
The Fair Work Amendment Act 2013 enables a worker who is bullied at work to apply to the FWC for an order to stop the bullying. The key features of the FWC’s new anti-bullying jurisdiction are:
- A worker who reasonably believes that he/she has been bullied at work may apply to the FWC for an order under Section 789FF (Section 789FC).
- For the purposes of this part of the Act, “worker” has the same meaning as in the Work Health and Safety Act 2011 (WHS Act). This means that a broad range of individuals could seek an order under section 789FF, including employees, contractors, subcontractors, outworkers, apprentices, trainees and work experience students (Section 789FC(2)).
- A worker will be considered to have been “bullied at work” if (Section 789FD):
- while working in a “constitutionally-covered business” (i.e. a constitutional corporation or Commonwealth authority as defined in Section 12 of the Fair Work Act 2009, or a body incorporated in or operating principally in the ACT or NT), an individual or group of individuals 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 – this reflects the definition of “bullying” recommended by the 2012 Report on Workplace Bullying: “We just want it to stop,” which encompasses repeated/persistent unreasonable behaviour such as threats, victimisation, humiliation or intimidation of an individual.
- However, management action carried out in a reasonable manner (e.g. performance management, disciplinary action, allocation of work, and fair and constructive feedback by managers or supervisors) do not constitute bullying.
- The FWC would be required to start dealing with an application for an anti-bullying order within 14 days (section 789FE), e.g. by contacting the parties to inform itself of the circumstances involved, or by holding a conference or formal hearing.
- Under section 789FF, the FWC will have powers to make various kinds of orders where it is satisfied that a worker has been bullied at work and there is a risk that this conduct will continue. The focus of these orders is meant to be preventative, and to resolve the matter so that normal working relationships can resume. Accordingly, the FWC may make any order it considers appropriate – other than orders for reinstatement or the payment of compensation (section 789FF(1)). Orders could apply not only to the employer, but also to co-workers or visitors to the workplace. The orders that could be made might include:
- requiring an individual or group to stop specified behaviour;
- monitoring compliance with an employer’s workplace bullying policy, or requiring a review of such a policy;
- an order for the provision of information and training to workers on bullying issues.
- When making an order under section 789FF, the FWC must have regard to the outcomes of any other investigation of the matter, or other procedures that are available to the worker to resolve grievances or disputes (section 789FF(2)). This would enable the FWC to take into account any action taken by the employer or by a regulator under the WHS Act in relation to the same matter.
- Where proceedings have already been commenced seeking remedies under the WHS Act, a worker will not be precluded from seeking an order under section 789FF in respect of the same matter (section 789FH).
- Any order made by the FWC under section 789FF would be enforceable in civil remedy proceedings under the FW Act (section 789FG).
- Overall, it is intended that the FWC’s new anti-bullying jurisdiction will provide workers with an “early intervention” mechanism to resolve a bullying matter quickly and inexpensively. A fee will be charged for making an application, but it will likely be only minimal (along the lines of the unfair dismissal application fee, currently $64.20).
The FWC’s anti-bullying jurisdiction will take effect from 1 January 2014, six months later than the government intended. Ensure that you take a proactive approach to updating your bullying and harassment policies and procedures. Make sure management understand their obligations in dealing with complaints and claims. Lastly, train your employees on the policies and procedures and the impact that bullying can have on employees’ wellbeing.
Fair Work Amendment Act 2013. Retrieved 22-07-2013.
John Tuck and Anthony Forsyth (28 March 2013). “Fair Work Amendment Bill 2013 introduced into Parliament”. Retrieved 19-07-2013.
Jack de Flamingh, John Tuck and Anthony Forsyth (1 July 2013). “Fair Work Act amendments passed by Parliament, with delayed start-up for anti-bullying provisions”. Retrieved 19-07-2013.