Baker Love employment lawyer, REBECCA MCKENZIE, spoke to 2NUR’s Business, the Law and You host Julian Campbell on new Anti-bullying legislation on 5 Dec 2013. Here are some of the key issues they discussed.
The experience of being bullied can have negative impacts on feelings of self-esteem and psychological well-being, but from an employer’s commercial perspective, costs of workplace bullying can include staff turnover, productivity loss, damage to workplace culture and in some cases, significant legal costs and adverse publicity.
At the moment, allegations of bullying in the workplace can be pursued under a variety of different laws and instruments, such as work health and safety laws; adverse action and unfair dismissal under the Fair Work Act; and internal dispute resolution procedures, but there is no one law or central place to deal with these kinds of matters.
Anti-bullying amendments to the existing Fair Work Act will come into effect on 1 January 2014, and for the first time there will be an all-encompassing law that makes bullying conduct unlawful.
How the new laws differ to the existing avenues
The main change is that there will now be a national definition of workplace bullying. Under the new regime, a worker is being bullied at work if, while the worker is at work, an individual or a group of individuals repeatedly behaves unreasonably towards the worker, and that behaviour creates a risk to health and safety.
Bullying behaviour includes conduct that is victimising, intimidating, humiliating or threatening. It is important to note however that reasonable management action carried out in a reasonable manner does not contravene the workplace bullying provisions.
The term “worker” doesn’t just refer to employees, but means an individual who performs work in any capacity, and includes employees, contractors, subcontractors, apprentices, trainees, volunteers and students gaining work experience.
What a worker who is being bullied needs to do
A worker who believes he or she is being bullied will need to make an application to the Fair Work Commission, similar to the way unfair dismissal and unlawful termination applications are lodged, and the Commission will be required to act on the application within fourteen (14) days.
Some possible consequences for employers
If the Fair Work Commission is satisfied that the worker has been bullied, and there is a risk that the worker will continue to be bullied, the Commission may make any orders that it considers appropriate to stop the bullying, other than an award for the payment of money.
If an employer does not comply with an anti-bullying order it may be fined, with a maximum penalty of $51,000.00 for corporations and $10,200.00 for individuals.
When considering the terms of any order, the Commission must take into account factors including:
(a) any outcomes of an investigation into the matter by the employer; and
(b) any procedures available to the worker to resolve issues or disputes.
This means that it is now vital for employers to take appropriate steps to respond to complaints of bullying and investigate those complaints efficiently. Given that the Commission is required to deal with applications within 14 days, there will be little time for employers to respond to a complaint. It is also very important that employers have robust policies in place which address bullying in the workplace, and that employees receive appropriate training on the policies.
What should employers do to ensure they are ready for the new laws?
Before the new regime commences on 1st January 2014, employers should:
- Familiarise themselves with the new laws;
- Review, and in particular update, existing bullying policies (keeping in mind that they may end up being subject to review by the Fair Work Commission);
- Ensure employees have received appropriate training in bullying policies;
- Consider their complaints and investigation processes; and
- Treat bullying complaints seriously, as it will be open to an employee to bypass internal processes and lodge a complaint directly with the Fair Work Commission.
