Anti-bullying Workplace provisions from 1 January 2014

bullyWith the commencement of the recent amendments to the Fair Work Act, a worker who believes they have been bullied in the workplace may now apply to the Fair Work Commission for an order to stop the bullying from 1 January 2014. The provision is not limited to employees but extends to contractors, labour hire personnel and persons engaged under other workplace arrangements.

There are no time limits for making an anti-bullying application however, a worker must still be working at the offending workplace. A terminated worker cannot apply for an anti-bullying order although may still be able to pursue an unfair or unlawful dismissal claim.

Bullying at Work

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. Bullying however does not include one off instances of insensitivity or rudeness or reasonable management activities carried out in a reasonable manner.

Although “unreasonable behaviour” is not defined in the amendment Act, the Safe Work Australia Guide for Preventing and Responding to Workplace Bullying defines “unreasonable behavior” as behaviour that a reasonable person, having considered the circumstances, would see as unreasonable, including behaviour that is victimising, humiliating, intimidating or threatening. Examples of such behaviour include:

  • abusive, insulting or offensive language or comments
  • unjustified criticism or complaints
  • deliberately excluding someone from workplace activities
  • withholding information that is vital for effective work performance
  • setting unreasonable timelines or constantly changing deadlines
  • setting tasks that are unreasonably below or beyond a person’s skill level
  • denying access to information, supervision, consultation or resources to the detriment of the worker
  • spreading misinformation or malicious rumours; or
  • changing work arrangements such as rosters and leave to deliberately inconvenience a particular worker or workers.

A single incident of unreasonable behaviour is not considered to be workplace bullying – it must persist to constitute bullying.

Reasonable Management Action

“Reasonable management activities” will not constitute workplace bullying. Employers (being those that are constitutionally covered businesses) may take “reasonable management” action to direct and control the way work is carried out.

Managers and supervisors may allocate work and give feedback on a worker’s performance. These actions are not considered to be workplace bullying if they are carried out lawfully and in a reasonable manner.

Constitutionally covered businesses

The new bullying provisions apply to all “constitutionally covered businesses” including:

  • constitutional corporations (Pty Ltd and Ltd businesses)
  • the Australian Government and its agencies
  • sole traders, partnerships and trustees in ACT and NT; and
  • incorporated volunteer associations that have at least 1 employee.

The amendment provisions do not apply to certain State public sector employees or unincorporated partnerships although State work health safety legislation will continue to apply.

The Defence Force and a number of federal security agencies have also been carved out from the application of the bullying amendments.

If a worker does not work for a constitutionally covered business, they cannot apply to the Fair Work Commission to stop bullying.

Powers of the Fair Work Commission

The Fair Work Commission will be required to commence dealing with an application within 14 days.

The Commission may make any order it considers appropriate (except orders requiring the payment of a pecuniary penalty) including:

  • that an individual or group stop specified behaviour
  • regular monitoring of behaviour by an employer
  • compliance with an employer’s workplace bullying policy; and/or
  • support and training, or review of an employer’s workplace bullying policy.

An order may be directed to the employer or principal of the worker, the employer or principal of an alleged bully and an alleged bully and/or co-workers of the worker. A breach of an order of the Fair Work Commission will attract a civil penalty.

Anti-bullying implications

There is significant concern and uncertainty about the potential impact of the new anti-bullying laws with an anticipated influx of stop order applications being brought before the Fair Work Commission.

In an attempt to allay these concerns, the Fair Work Commission has released an Anti-Bullying Benchbook and Anti-Workplace Bullying Guide for parties in lodging or responding to anti-bullying applications made under the new anti-bullying laws.

In the interests of a safe and harmonious workplace, workers are encouraged to raise any issues of bullying within their appropriate lines of management. Employers ought to have appropriate policies, training and procedures in place addressing anti-bullying in the workplace and are encouraged to respond to allegations of bullying in a prompt and fair manner.

To further discuss your workplace rights or obligations, please contact us on 8860 9477.