RECENT AMENDMENTS ON BULLYING REGULATIONS AND ITS EFFECT ON EMPLOYERS

Legislative Amendments to stop Bullying

In an attempt to further protection for employees in the workplace as of 1 January 2014 (Commencement Date) the Fair Work Commission (FWC) will be invested with additional powers allowing it to make orders to prevent bullying in the workplace.

The Amendment Act

The Fair Work Amendment Act 2013 (Cth) (Amendment Act) was passed by the Federal Parliament on 27 June 2013, and by doing so implements a number of the recommendations made in the 2010 Fair Work Act Review and further additional proposals made as to the amendment of policy, including protection against bullying. These amendments will take effect on the Commencement Date, some six months later than that desired by the Federal Government, 1 July 2013, but necessary due to political reasons.

The recent amendments will, for the first time, effectively allow workers an alternate avenue for redress when they reasonably believe they are being bullied in the workplace. Such a worker will then be entitled to make an application to the FWC to issue an order to stop, or prevent, the bullying. Further, the FWC must deal with an application made within fourteen days of lodging of the application.

The FWC expects that under the new provisions 3,500 complaints regarding workplace bullying will be investigated annually.

Until it takes effect on the Commencement Date, the respective federal, state and territory work health and safety laws, along with anti-discrimination and workers compensation legislation provide the primary regulation for bullying in the workplace.

Defenitions

The Amendment Act has specifically included in the provisions the word ‘worker’ as opposed to ‘employee’ which has the effect of expanding the group of individuals entitled to make a claim with the FWC. Worker is given the same definition as may be found in the Work Health Safety Act 2011, not including a member of the Australian Defence Force, and includes an individual who performs work in any capacity, including (as prescribed by incoming clause 789FC(2)):

  1. an employee;
  2. a contractor;
  3. a subcontractor;
  4. an outworker;
  5. an apprentice;
  6. a trainee;
  7. a student gaining work expereince; or
  8. a volunteer.

 
With the Amendment Act comes a new definition for bullying, the definition, to be found within incoming clause 789FD is as follows:

  1. A worker is bullied at work if:

(a) while the worker is at work in a constitutionally-covered business:
(i) an individual;
(ii) a group of individuals;

repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member; and

(b) that behaviour creates a risk to health and safety.

Exclusions

Under the new anti-bullying provisions provided for in the Amendment Act a worker will not be deemed to have been bullied, or are being bullied, in the event the behaviour in respect of which the claim was made is deemed reasonable management action carried out in a reasonable manner.

Further, members of the Australian Defence Force are not entitled to make a claim with the FWC in respect of bullying. Accordingly In the event the FWC receives a claim in respect of the Australian Defence Force such claims may be dismissed by the FWC. In addition, the FWC may also dismiss an application if the FWC considers the application may involve matters relating to:

  1. Australian defence,
  2. Australian national security;
  3. An existing or future covert operation of the Australian Federal Police; or
  4. An existing or future international operation of the Australian Federal Police.

 
Making a claim to FWC

Under incoming clause 789FC(1) a worker who reasonably believes they are being bullied in the workplace is entitled to make an application to the FWC.  The application must be filed in conjunction with the relevant fee.

When an application is received by the FWC they must take into account the following considerations:

  1. Workplace procedure available to the affected worker in the workplace set up to prevent and deal with workplace bullying;
  2. Any outcomes arising from the performance of workplace procedure made available to the worker to prevent and deal with bullying;
  3. Any outcomes determined from an investigation into the bullying conducted by another individual, group or body;
  4. Any other matters that the FWC deems relevant in the circumstances.

There is no income threshold for the making of a claim by a worker. Accordingly, regardless of income, should a worker reasonably believe that they are being bullied, they will be entitled to make an application to the FWC to stop the bullying.

Pursuant to incoming clause 789FF(1) the FWC may make an order to stop bullying if the worker has made the appropriate application and the FWC is satisfied that the worker has been bullied at work by an individual or group or individuals and there is a risk that the worker will continue to be bullied at work by the individual or group.

Remedies

The powers of the FWC are aimed at preventing bullying and are not directed at punishing those involved in past bullying.

Essentially the FWC will have the power to make an order they deem appropriate, except for the payment of monetary compensation or reinstatement, to prevent a worker from being bullied in the workplace.  The FWC will have the power to make orders requiring an individual, or group of individuals, to cease any behaviours which may be considered to be bullying under the circumstances. Alternatively, the FWC may also make orders requiring the respective employer to implement certain training within the workplace or anti-bullying policies.

In the event an order of the FWC is contravened a civil remedy will be available to the worker in respect of whom the original FWC order was made. Remedies for the civil remedy would include monetary compensation.

How does this affect employers

The full effect this amendment will have on employers will not be fully known until the FWC receives its jurisdiction and begins exercising it accordingly. However, it is likely that the procedures set up and implemented by employers in respect of bullying in the workplace will likely be at the forefront of discussion.

Accordingly we advise that prior to the Commencement Date employers do the following:

  1. Review any workplace bullying policies currently in place;
  2. Review mechanisms for dealing with workplace bullying;
  3. Provide training and information to employees;
  4. Inform workers what they should do in the event they believe they are being bullied;
  5. Ensure that any complaints made by a worker are dealt with in a professional and timely manner;
  6. Ensure outcomes of complaints previously made are correctly implemented and effectively stop, and prevent, further bullying.

 
Case Note – Swan v Monash Law Book Co-operative

Bullying in the workplace has been a long standing issue being dealt with in the court system, with a number of cases being brought due to claims of serious injury and negligence, and a breach of duty of care by the employer.

The case of Swan v Monash Law Book Co-operative (who traded as Legibook) is one of the more recent cases involving bullying. In this matter, the Supreme Court of Victoria awarded $600,000 to an employee after developing psychological disorders due to a pattern of workplace bullying, including sarcasm, hostility, rudeness, violent behaviour and the threat of termination. After making complaints to the Board of Legibook it was agreed that the behaviour being displayed was inappropriate and identified means of assisting Ms Swan including the application of position descriptions, employment contracts and employment policies. The Board failed to implement the identified measures. After making it known to the Board on at least two further occasions Ms Swan discontinued employment with Legibook.

It was found that Legibook had failed in their duty of care to Ms Swan by not adequately dealing with the complaint of bullying. The $600,000 amount awarded to Ms Swan was on account of loss of past earnings and future earnings and damages for pain and suffering and loss of enjoyment of life.

Cases like that of Swan v Monash Law Book Co-operative should act as an example to employers and show that employers must act promptly to complaints of workplace bullying.

In the event employers do not have the appropriate policies in place now is the time to implement procedures within the workplace to prevent bullying, have a workplace bullying policy issued and ensure a procedure for dealing with complaints is set up.

Pointon Partners has experience in advising on the above issues, including the preparation of bullying policies.

If you have any queries or require any assistance in this area please contact Michael Bishop of our office on 03 9614 7707.

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