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New Changes Will Allow Fair Work Commission to Deal With Workplace Bullying Complaints

The Federal Government recently announced that it will amend existing laws to give the Fair Work Commission (FWC) the power to deal with workplace bullying complaints. On 27 June 2013 Federal Parliament passed the new laws, with the Fair Work Amendment Act No 73 2013 (Cth) receiving Royal Assent on 28 June 2013. Implementation of these new provisions will significantly change the existing legislative and regulatory framework dealing with workplace bullying. It will make a significant difference to the way employers and employees contend with workplace bullying issues.

The new anti-bullying laws will come into effect from 1 January 2014. Accordingly over the next few months employers should ensure they get their houses in order and update and review any bullying, harassment and discrimination policies and associated work health and safety policies (or develop them where none presently exist).  Employers will need to review both their anti-bullying and anti-sexual harassment policies and procedures to ensure continuing compliance.  

The current law on workplace bullying

There has never been any comprehensive legislation in Australia dealing specifically with the issue of workplace bullying, nor is there any express prohibition on workplace bullying in any Australian legislation. As a result, many employers and employees struggle to understand their rights and obligations when dealing with workplace bullying. The law on workplace bullying can best be described as complex.

Given the lack of a dedicated jurisdiction for workplace bullying, employees are forced to bring workplace bullying claims through a range of other legal avenues, including, for example:

  • anti-discrimination law;
  • criminal law;
  • trade practices law;
  • common law (eg. breach of contract, negligence or other tortious claims); and
  • industrial law (eg. unfair dismissal, misconduct or adverse action claims).

The effect of the current legal framework is that employees seeking redress for workplace bullying are required to "shop around" to find a cause of action that can be established — this has become a complex process with significant gaps.

Using workplace health and safety laws and other existing laws

Attempts to find a home for workplace bullying within the existing legal framework have progressed recently, with a growing trend towards viewing bullying as a work health and safety (WHS) issue. Under WHS legislation, employers have a duty to ensure the health and safety of workers, and employees have a corresponding duty to take reasonable care for their own health and safety and for the health and safety of others.

A worker may also, for example, bring a claim under the Act's "general protections" or under federal or state anti-discrimination laws if the allegation of bullying involves discrimination on an unlawful ground and/or prohibited harassment.

Despite that trend, however, the WHS framework has a number of deficiencies in relation to adequately addressing workplace bullying. A contravention of WHS legislation is a wrong against the state, rather than against an individual, and individuals are not able to initiate prosecutions under WHS legislation. Further, statistics demonstrate that the regulators are struggling to respond to the sheer volume of complaints: there were 12,000 bullying-related enquiries made to the regulators in New South Wales and Victoria in the financial year 2011–12, yet there have only been a handful of prosecutions for workplace bullying.

 How did changes come about?

The changes are part of the Federal Government's response to a federal parliamentary committee's (Committee) report on workplace bullying which made various recommendations in October 2012.

The Committee recommended that workers who are targeted by workplace bullying be given the specific right to seek redress through an adjudicative process. The Federal Government has pledged to do so by providing employees with a right of recourse to the FWC.

The Federal Government has not given any indication about whether workers will have to file this type of application with the FWC within a defined time period, what process the FWC will be required to undertake to "deal" with an application, or whether an employer that is subject to a bullying complaint will be obliged to participate in such a process.

In response to other recommendations made by the Committee, the Federal Government, amongst other things:

  • will encourage Safe Work Australia (SWA) to finalise the draft Code of Practice: Managing the Risk of Workplace Bullying and work to have it implemented in each state and territory;
  • has asked SWA to develop advice materials for employers on preventing and responding to bullying allegations, and to determine how an accredited training program on workplace bullying can be developed;
  • has asked Comcare to implement a nationally accredited training program for all work health and safety inspectors and to develop a uniform national approach to compliance and enforcement policy, both in liaison with state and territory work health and safety regulators; and
  • will encourage state and territory governments to collaborate to ensure that their criminal laws applicable to serious cases of bullying are consistent and strong.

Bullying complaints increasing

 Claims of workplace bullying have increased in recent years. Many new claims are arising from a performance management context. There is either a claim that the performance management system itself amounted to bullying, or a claim of bullying in respect of past conduct may emerge during the performance management process. The ‘general protection’ provisions of the Fair Work Act have also contributed to the trend, because disciplinary action or dismissal as a result of, or proximate to, a complaint of bullying may constitute adverse action because the bullying complaint may amount to a ‘workplace right’ and may be covered by these provisions. In order to prevent these types of claims, the employer should separate the investigation of the bullying complaint from the performance management process. Minimise liability by treating complaints seriously and investigate them promptly, because anecdotal evidence suggests that employees tend to make formal claims as a last resort after the employer had failed to listen to or investigate their complaints.


Statistics from the Parliamentary Committee Report (Workplace Bullying: We Just Want it to Stop), indicate that around 7 per cent of employees claim to have been bullied during the past 6 months, and the average cost of resolving a formal claim of bullying is between $17,000 and $24,000.

What the anti-bullying amendments aim to achieve

The amendments to the Fair Work Act aim to overcome the above problems by providing a clearer, simpler and faster outlet for dealing with complaints that are not resolved in-house.   The following is a brief summary of the key changes:

  • The Act includes a definition of bullying. It must involve repeated unreasonable behaviour towards a worker or group of workers that creates a risk to workplace health and safety. So, unlike the legal definitions of sexual harassment, one-off incidents are excluded. The employee must also have a ‘reasonable belief’ that he/she has been bullied.
  • ‘Reasonable management action taken in a reasonable manner’ is excluded from the definition. So to this extent, it is also clarified what is not bullying.
  • The principles of workplace health and safety legislation are adopted in that claims can be made by a ‘worker’, which is a broader category of person than an ‘employee’. The definition covers anyone working at the workplace (including contractors, work experience students and volunteers), not just employees.
  • A worker can lodge a claim of bullying with the FWC, which will be required to deal with it within 14 days. The Commission will be able to make various orders, including reporting the matter to the relevant workplace health and safety regulator, but cannot order financial compensation to a worker nor order reinstatement.
  • Failure to comply with a Commission order will attract a financial penalty of up to $33000.
  • The FWC, if it considers it necessary, can refer a bullying complaint to a state or territory-based work health and safety regulator for investigation and appropriate action under the regulator's compliance and enforcement policy.

What this means for employers

The amendments would separate claims of bullying from adverse action claims, which has been a somewhat confusing area for employers to date. The changes provide affected workers with another avenue to pursue genuine and speculative bullying claims against employers – possibly even without seeking to have the allegations dealt with through their employer’s internal bullying policies and procedures. They offer the promise of a simpler and faster means of dealing with claims; however, they also mean that both the Fair Work Commission and workplace health and safety regulators may become involved in investigating the same issue.

 The definition will be helpful, it may still be too subjective, as the perception of ‘bullying’ is mainly influenced by the individual person’s reaction to another person’s conduct, which can vary widely.

 Employers should take the following steps to protect themselves:

  • Review the organisation’s anti-bullying policy (eg its definitions) for compliance with the Act.
  • Ensure the organisation has a strong and effective in-house complaint resolution procedure. Note: the Commission will be required to take account of what actions the employer took in response to the original complaint (eg whether there was a thorough investigation).
  • Sexual harassment policies may also need review
  • Take all reasonable steps to prevent the offending behaviour
  • Sexual harassment policies must be tailored to the relevant jurisdiction, and based on official guidelines.
  • Regular distribution of the policies, backed by regular tailored training to all staff, is required.
  • Employers must act on any complaints quickly and consistently.
  • Employers must respond proactively to complaints or other warning signals (such as comments in engagement surveys or exit interviews).

 

Vince Scopelliti
Managing Director

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