Workplace Bullying Laws
By Charles Cody, Principal, MST Lawyers
The new “Stop Bullying” laws commenced operating on 1 January 2014. Section 789 of the Fair Work Act 2009 (“Act”) enables a “worker”, who reasonably believes they have been bullied at work, to apply to the Fair Work Commission (“FWC”) for an order to stop the bullying.
The new laws are likely to gather momentum over the next twelve months and may have significant implications for employers. Performance management and performance reviews are necessary to keep businesses efficient. They can also give rise to friction between employees and their managers. The FWC will provide a free and speedy venue for employees to air their grievances.
It is always expensive and counterproductive to litigate, it is therefore important for employers to:
- understand the new laws;
- ensure that performance reviews and performance management are conducted in a positive manner;
- have an effective workplace bullying policy in place;
- have effective grievance and investigation procedures in place;
- ensure managers are trained to handle investigations and complaints;
- monitor and understand the workplace culture;
- design methods to curb risky practices such as racial and sexual jokes; and
- respond quickly to complaints and conduct investigations in a professional, independent and confidential manner.
The New Laws
“Worker” is defined to include an employee, a contractor, a subcontractor, an outworker, an apprentice, a trainee, a student gaining work experience or a volunteer.
“Bullying” is defined as the subjecting of a worker to repeated, unreasonable behaviour:
- at work;
- by an individual or group of individuals;
- that creates a risk to health and safety.
The Act specifies that “reasonable management action carried out in a reasonable manner” is not bullying.
The FWC must begin dealing with an application made by a worker within 14 days of it being received. An employer of, either or both, the applicant and an individual “bully” must file a response within 7 days of receipt of the application.
The FWC must take into account when deciding whether to make an order:
- the risk of repetition of the conduct;
- whether there are internal procedures capable of resolving the grievance;
The FWC has powers to deal with the dispute, including:
- making an order that the individual or group cease the alleged behaviour;
- requiring ongoing monitoring of workplace relationships;
- conducting a review of the employer’s policies and procedures and requiring compliance with those policies and procedures; and
- requiring the employer to provide ongoing education and training about workplace bullying.
The Commission cannot order compensation or financial penalties. Penalties can be imposed if an order is breached.