Changes to Anti Bullying Legislation: the Effects so Far

New changes to workplace bullying legislation have so far showed underwhelming results according to a Fair Work Commissioner with the first substantive order under the new act being made almost three months after the new system came into effect. The changes were made to the Fair Work Act 2009 last year in response to the recognition of the prevalence of bullying and harassment in Australian organisations and took effect on January 1 this year. The impact of bullying is believed to cost Australian employers millions each year in absenteeism and lack of productivity.

The new laws mean that workers who believe they are being bullied at work can now lodge a complaint directly with the Fair Work Commission. The Fair Work Commission has been given the power to implement any remedy they believe appropriate apart from financial compensation to deal with specific incidents of bullying at work.

Although this new legislation came into effect at the beginning of the year, early reports show that there hasn’t been the anticipated dramatic increase in complaints lodged with the Fair Work Commission. However, it is still fairly early on and the number of complaints could rise in the future.

What has been done so far?

The first official ruling was made on March 21st by Lea Drake, Senior Deputy President of the Fair Work Commission and directions included prohibiting an employee to have any unaccompanied contact with a co-worker or making any comments about the co-worker’s clothing or appearance.

The decision was made after a conference on March 4 and directions also stated that the respondent (the employee accused of bullying) should avoid sending emails or texts to the co-worker except in an emergency, should complete any exercise undertaken at the employer’s premises before 8am and refrain from raising work related issues unless first notifying the Chief Operating Officer or his subordinate.

The applicant was also ordered not to arrive at work before 8.15am. The parties have both been given leave to have the matter re-listed for a later conference if there are any difficulties implementing the orders.

According to workplace tribunals commissioner Anna Cribb, there have been 66 bullying claims made so far under the new system, nine of which were withdrawn in the early stages. This is lower than the predicted 67 claims a week but there has been an element of confusion as to whether alleged acts of bullying committed before January 1 can be included in claims and this may have impacted the level of reporting.

What are the main types of claims?

The majority of claims made so far under the laws have fallen into one of two categories according to HR publication OHS Alert. According to Commissioner Cribb the majority of reports involve employees being bullied either by supervisors or managers or by a group of employees. There were also two cases of supervisors reportedly being bullied by employees.

Although the number of complaints lodged so far falls below what was anticipated, the bullying tribunal’s helpline has reportedly been receiving in excess of 200 calls per week.

How effective is the legislation in dealing with complaints?

It is believed that the Fair Work Act legislation regarding reasonable management action will apply in a significant number of workplace bullying allegations. Many of the applications made by employees regarding bullying by a supervisor are believed to fall into this territory with the need to clarify what exactly constitutes reasonable steps taken by management and what would be classified as harassment or bullying.

Other legislation involving bullying, notably workers’ compensation laws in different states, have clear exclusions as to what behaviour constitutes reasonable direction and disciplinary action by managers and supervisors. So far the Fair Work Act legislation has a certain amount of uncertainty around what behaviour is excluded from further action. It is believed that this could lead to employers being able to claim reasonable disciplinary action rather than bullying and therefore avoid further penalisation.

The Fair Work Commission has recently ruled that alleged bullying activities which took place before January 1 are admissible under the new scheme, and this could lead to an increase in the number of complaints lodged.

Is your business suffering from allegations of workplace bullying? Bullying can be difficult to determine and often an impartial investigator is the best way to ensure a fair result. Contact us today to find out more about what we do and how we can help you effectively deal with claims of harassment and bullying in your organisation.