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From 1 January 2014, changes to the Fair Work Act will provide workers who reasonably believe that they are being bullied at work with a quick way to stop the bullying by making application to the Fair Work Commission for orders to prevent the bullying.
The changes are part of the Government’s response to the findings of a parliamentary inquiry into bullying in the workplace.
The Government has focused the new bullying laws on “resolving the matter and enabling normal working relationships to resume”.
Given the broad range of workers who will be able to make applications to the Commission for orders to prevent bullying against them, these changes are likely to have a significant impact on all sectors of the workforce, including the not-for-profit sector.
Outlined below are changes to the Fair Work Act, the definition of “bullying”, matters the Commission must consider in making order to prevent a worker being bullied and the types of orders it may make.
What is ‘bullying’?
Under changes to the Fair Work Act, a worker is bullied at work if – while the worker is engaged by a constitutionally-covered business – another individual, or group of individuals, repeatedly behaves unreasonably towards the worker and that behavior creates a risk to health and safety.
Examples of “unreasonable behaviour” may include victimisation, humiliation, intimidation and/or threatening behaviour.
However, the changes make it clear that reasonable management, when carried out in a reasonable way, will not mean a person is being “bullied at work”. This is consistent with the finding of the Bullying Inquiry Report that managers need to be able to manage their staff.
Who can make an application for orders to prevent bullying?
A worker is entitled to make an application to the Commission for an order to prevent bullying at work.
The term “worker” has been given the same broad definition in the changes to the Fair Work Act as in the Work Health and Safety Act 2011. They are “persons who carry out work in any capacity for a ‘person conducting a business of undertaking'”, including as:
- an employee;
- a contractor or a subcontractor;
- an outworker;
- an apprentice;
- a trainee;
- a student gaining work experience; or
- a volunteer.
However, the term “worker” does not include members of volunteer associations, strata bodies corporate and incorporated volunteer associations.
When can the Commission make orders to prevent bullying, and what orders can it make?
The Commission – which must start dealing with the matters within 14 days of the worker making an application for orders – may make orders if it is satisfied that the worker has been bullied, and there is a risk that the worker will continue to be bullied.
The Commission cannot make orders for reinstatement or payment of compensation or pecuniary payments to the bullied workers.
The explanatory memorandum to the legislation provides the following examples of the types of orders the Commission may make to prevent bullying:
- that the individual or group of individuals stop the specified behaviour;
- regular monitoring of behaviours by an employer;
- compliance with the employer’s workplace bullying policy;
- provision of information and additional support and training to workers; and/or
- review of the employer’s workplace bullying policy.
The Commission’s orders will “not necessarily” be limited or apply only to the employer of the worker who is bullied; they may also apply to others such as co-workers or visitors to the workplace.
In addition, the Commission may also refer the matters to a work health and safety regulator where it considers necessary and appropriate.
There are significant penalties if a person to whom an order to stop bullying fails to comply with that order, with the current maximum penalty being $51,000 for a body corporate, or $10,200 for an individual.
What can the NFP sector do to manage the risks of the new bullying laws?
The new bullying laws have received a great deal of media attention, which in our experience is likely to result in increased awareness of, and reliance on, those laws amongst workers.
In order to manage their risk profiles, we recommend all employers in the not-for-profit sector take steps to ensure that managers are aware of the new workplace bullying laws and of the consequences of any failure to act reasonably in their dealings with workers.
By Joydeep Hor, Managing Principal and Alison Spivey, Senior Associate: People+Culture Strategies.
People+Culture Strategies (PCS) is an Australian workplace and HR law firm that services Australian and international employers in all aspects of workplace relations. and is the Legal Partner for the upcoming Not-For-Profit People Conference, 27-28 August 2013.