In Australia, new amendments to the Fair Work Act 2009 that came into effect from January 1, 2014 have substantially changed the way the claims of harassment and bullying are investigated and managed within the workplace.
The Fair Work Commission (FWC) is vested with the power to deal with bullying and make orders to stop such behaviour however, the FWC does not have any powers to charge pecuniary penalties as the focus is on prevention and rectification of negative working relationships.
What is Workplace Bullying?
Unreasonable behaviour towards either a worker or a group of workers, causing risk to their safety or health, by either a person or a group of persons is referred to as workplace bullying.
A reasonable management action implemented in a reasonable manner does not amount to bullying, but some of the following behaviours can be construed as bullying:
- Intimidating or aggressive conduct
- Humiliating comments
- Spreading of malicious rumours
- Initiation ceremonies, teasing, practical jokes, etc.
- Eliminating a worker from work-related events
- Unreasonable work expectations
- Display of offensive material
- Putting pressure so as to make the worker behave in a manner that is inappropriate
What Does This Mean If I Am An Employee?
Prior to the amendment of the Fair Work Act, there was no Australian legislation to prohibit workplace bullying. Workers were forced to rely on general laws like the workers’ compensation laws, the general provisions of the Act, common law claims and anti-discrimination laws.
In certain cases, regulators have made use of the health and safety legislation to resolve claims of bullying.
However, the new all encompassing law allows most workers in Australia, whether they work for a limited or private limited company, the Australian Government (excepting a few agencies) and incorporated volunteering associations to apply to the FWC to intervene in workplace bullying incidents.
Under the amended laws, a worker includes employees, subcontractors, contractors, outworkers, students working for experience, volunteers, trainees and apprentices. They all have access to the laws.
If a worker makes a claim, the FWC should start dealing with the application within 14 days of receipt of the complaint. If the commission determines that bullying has occurred, they will make an order so as to prevent the same. However, they cannot make an order that calls for the payment of a pecuniary amount.
If the employer does not comply with the FWC’s order, the worker may apply to the Federal Circuit Court or Federal Court to enforce the order.
What Does Mean If I Am An Employer?
Though the FWC does not have the powers to make orders for reinstatement or compensation, you will be under pressure to proactively prevent workplace bullying and intervention by the Commission.
You will have to make sure that policies and procedures are in place, complaints are being appropriately investigated and outcomes of investigations are implemented, and staff, managers and supervisors are trained on issues related to harassment, bullying and discrimination.
Another consideration for businesses is to review whether you have the necessary insurances in place to protect yourself and also the company against potential claims. There are numerous types of cover available under Management Liability Insurance such as Employment Practices Liability, which is now more important than ever given the amendments to the Fair Work Act. This provides cover for the company, directors, officers and employees from claims made by current, past or prospective employees for issues arising from employment practices including harassment, unfair dismissal, bullying and discrimination.
Having the right cover in place will protect the financial well-being of the company as well as that of its directors and officers.
What Should I Do In Order To Comply With The New Laws?
- Check whether systems to manage claims of bullying are in place
- If you don’t have a policy on bullying in the workplace, establish one
- Train your managers and staff in appropriate workplace behaviour and effectively managing employees so that claims can be avoided
- Put in place an effective monitoring arrangement and a procedure for managing complaints so that your business and board are protected against adverse orders/penalties
It is apparent the amendments to the Fair Work Act has made it an all encompassing legislation (eliminating the need to depend on other legislations) to deal with workplace bullying, a significant change to the way in which employees and businesses deal with incidents.
The FWC may not have the powers to reinstate a worker or direct you to pay compensation, but you will be under pressure to prevent intervention by the commission.
Furthermore, if you do not comply with the order of FWC, the workers can approach the Federal Circuit Court or Federal Court for enforcement of the order. It is therefore imperative that you train your staff on matters related to bullying in the workplace and establish policies and procedures to effectively deal with such situations to prevent escalation.