Federal Government fires up against workplace bullying | WISE Workplace

by Alison Page, legal counsel for WISE

The Federal Government has accepted most of the recommendations of last year’s parliamentary inquiry into workplace bullying and harassment (House Standing Committee on Education and Employment, ‘Workplace Bullying: We just want it to stop’). This will lead to a raft of legislative changes to the Fair Work Act, expected to be introduced in March and to come into effect by 1st July.

This means that the time is ripe for employers to prepare for these changes. They should consider:

• A review and update of bullying and harassment policies and grievance and complaints process policies

• Conducting training for (a) staff on what to do if they are bullied or harassed and (b) those responsible for managing complaints - on how to investigate and resolve these issues.

To ensure that victims have a rapid avenue of redress for their complaints before the Fair Work Commission (FWC), the Federal Government has already announced certain amendments. The FWC will have to prioritize these matters and list applications for consideration within 14 days. The commission will be empowered to make orders to deal with the complaint and/or refer the matter to the relevant State OH&S regulator. Penalties for breach of the legislation could be as high as $33,000.

Other amendments to the Fair Work Act include:

• Adoption of the Inquiry Committee's recommended definition of "bullying” being “repeated, unreasonable behaviour directed towards a worker or a group of workers that creates a risk to health and safety”. This definition is consistent with Safe Work Australia’s draft code of practice.
• Recognition that bullying does not include reasonable management practices, including performance management conducted in a reasonable manner.

The Government also:

• gave support in principle to establish a new national service to provide bullying advice, assistance and resolution services to employers and workers;

• concurred that strong, nationally consistent criminal laws should apply to serious cases of bullying (including cyber-bullying), such as Brodie's Law in Victoria (see our earlier article)

• supported Safe Work Australia, by providing advice and nationally accredited training to employers, managers and health and safety representatives on how to prevent and respond to workplace bullying.

Not everyone is happy. Some commentators argue that many details of the proposed legislation are confusing. For example:

• Will applicants be required to raise their complaint first with their employer before making an application to the FWC?

• Will employees alone have access to this jurisdiction, or does it extend to “workers” more broadly (such as contractors)?

• Can complaints be brought against individual perpetrators, or only against the employer?

• Will the FWC have the power to make compensation orders?  (See Kristin Ramsey (2013) ‘Watch out:  New cause of action against bullies and employers that permit bullying’)