Since the proposed workplace bullying laws were introduced to parliament in March, the discussion and speculation continues to build as to how they will practically apply to workplaces after their commencement.
With the report of the Senate Education, Employment and Workplace Relations Legislation Committee imminent, we thought it timely to provide our analysis.
Who will be able to bring a claim under the laws?
A “worker” of a constitutionally-covered business who reasonably believes that he/she has been bullied at work will be able to bring an application with the Fair Work Commission (FWC) for an order to stop bullying.
“Worker” is defined broadly. That is, a worker is an individual who performs work in any capacity, and includes an employee, a contractor, a subcontractor, an outworker, an apprentice, a trainee, a work experience student or a volunteer.
Will all employers be subject to the laws?
No. The laws will apply to an employer that is a “constitutionally-covered business” (eg. a constitutional corporation). In other words, the majority but not all of Australian employers will be covered.
Sole traders, partnerships and some trusts and charitable organisations, however, will not be covered.
What is “bullying at work”?
Bullying at work will occur if an individual or a group of individuals:
- Repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member; and
- That behaviour creates a risk to health and safety.
What is not bullying?
An employer’s reasonable performance management processes will not be affected. The legislation specifically excludes reasonable management action carried out in a reasonable manner.
What constitutes “reasonable management action carried out in a reasonable manner” is already subject to regular consideration (and argument) in the various workers’ compensation jurisdictions.
We expect the arguments about the reasonableness of an employer’s actions to be just as lively in the new bullying jurisdiction.
What happens once an application is filed?
Put simply, things will happen quickly.
The FWC will be required to start dealing with an application for an order to stop bullying within 14 days of the application being made.
What will the FWC be able to do?
Under the legislation, the FWC will be able to:
- Inform itself in such a manner as it considers appropriate
- Hold a conference or a formal hearing
- Make any order it considers appropriate to prevent a worker from being bullied at work
Practical examples of the orders that the FWC may make include ordering:
- An individual or group of individuals to stop the bullying behaviour
- Regular monitoring of behaviours by an employer
- Compliance with an employer’s workplace bullying policy
- The provision of information and additional support and training to workers
- A review of the employer’s workplace bullying policy
Will the FWC be able to order monetary compensation?
No. The FWC will not be able to order payment of financial compensation for bullying.
What happens if an order to stop bullying is breached?
A person who breaches of an order will be liable to a penalty of $51,000 (in the case of a body corporate) or $10,200 (in the case of an individual).
What is the current situation with the Bill?
The Bill is presently with the Senate Education, Employment and Workplace Relations Legislation Committee. The due date for submissions from interested individuals and organisations closed on 15 April 2013. The Committee is due to report on submissions received by 14 May 2013.
A further update will be provided once the Bill continues its passage through parliament.
How should employers prepare?
Firstly, employers should review their workplace bullying policy to ensure that it is up to date and provides sufficient guidance for managers and employees. Any employer that does not have a workplace bullying policy in place should implement one as soon as possible.
Secondly, any report of workplace bullying will need be investigated. It would be incredibly difficult for an employer to demonstrate that it takes its workplace bullying obligations seriously if it did not have a clear process in place for the investigation of suspected workplace bullying.
Key managers and/or HR personnel will also need to have sufficient training in workplace investigations and have the necessary resources at hand in order to be able to respond appropriately to workplace bullying.
 See the Explanatory Memorandum to the Fair Work Amendment Bill 2013