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Smart workplace advice

Since our last workplace bullying update, there have been three important developments concerning the federal government’s initiative to eliminate bullying from workplaces.

  1. The House of Representatives Standing Committing on Education and Employment (House Committee) released its Advisory Report about the Fair Work Amendment Bill 2013 containing the workplace bullying provisions;
  2. The Fair Work Amendment Bill 2013 moved through the House of Representatives with its bullying provisions intact and a firm start date is now known;
  3. Safe Work Australia released a revised draft Model Code of Practice on Preventing and Responding to Workplace Bullying for public comment.

In this news article, we delve into the developments and highlight what they mean for you.

Advisory Report by the House Committee

On 5 June 2013 the House of Representatives Standing Committing on Education and Employment (House Committee) tabled its report on the inquiry into the Fair Work Amendment Bill 2013 (FW Bill).  The report took account of submissions of interested parties and evidence given at its prior public hearing in Melbourne.

As expanded upon in a recent news article, the anti-bullying provisions in the FW Bill will entitle a worker who has been bullied at work to apply to the Fair Work Commission (FWC) for an order to stop the bullying. The FW Bill had been referred (on 21 March 2013) to the House Committee for inquiry and report.

Perhaps not surprisingly, the House Committee received submissions of strong support for the proposed bullying laws by union organisations and some legal practitioners.  In contrast, the business sector and employer organisations were lukewarm to the proposed laws, with the House Committee describing their submissions as being “either reserved in their support of” or in “clear opposition” to the proposed bullying provisions.

In dismissing allegations by some business and industry groups that the anti-bullying measures had been developed without appropriate consultation, the House Committee recommended the passing of the FW Act by the House of Representatives.

Proposed Workplace Bullying Laws pass the House of Representatives

In the wake of the report of the House Committee, the FW Bill moved through the House of Representatives with its bullying provisions intact but with a delayed start date.

In order to secure support for the anti-bullying measures, the government has delayed the initially intended commencement date by 6 months. Commencement of the new provisions will now be 1 January 2014.

The later commencement of the workplace bullying provisions means that employers will have a better opportunity to ‘get their house in order’ in time for the new legislation.

Revised Draft Model Code of Practice Released

Codes of Practice apply in States and Territories that have implemented harmonised work health and safety legislation (currently all jurisdictions except Victoria and Western Australia). They provide practical guidance for persons (including employers) who owe duties under the safety legislation to not expose others in the workplace to a risk of injury.

In 2011, Safe Work Australia had released a draft model Code of Practice for Preventing and Responding to Workplace Bullying (Draft Code).

Following consideration of the comments of interested parties, the Draft Code has been amended and re-issued to reflect the comments received.

Public comment is again invited and will close on Monday 15 July 2013 at 5:00pm AEST.  A copy of the amended Draft Code may be obtained from the Safe Work Australia website.

The proposed definition of workplace bullying in the FW Bill and in the Draft Code are in essence identical. The Draft Code definition is as follows:

“Workplace bullying is defined as repeated and unreasonable behaviour directed towards a worker or a group of workers that creates a risk to health and safety.”

The Draft Code, however, provides guidance as to what constitutes “Unreasonable behaviour” ” and “Repeated behaviour” whilst the FW Bill does not.  Compliance with the Code and its content are therefore likely to guide handling of complaints of workplace bullying made to the Fair Work Commission.

Given the increased publicity about workplace bullying and impending new jurisdiction for the Fair Work Commission (FWC) to deal with bullying complaints, it will be important for all employers to understand the Code and to prepare their workplace for compliance. This will assist in reducing the prospect of bullying and intrusion by the FWC because of a claim being filed.

We will provide a further update about the Draft Code following the end of the public comment period.

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