The Federal Government has taken a ‘take no prisoners’ approach to stamping out workplace bullying – following the bullying inquiry and the proposed introduction of new complaint processes for workplace bullying, the government has recognised the impact of workplace bullying on productivity as well as health and safety.
According workplace law experts at Clayton Utz, it could however potentially lead to employees taking their complaints above employers’ heads.
Under the proposed guidelines, the Fair Work Act will be amended to more clearly define bullying, harassment or victimisation as “repeated, unreasonable behaviour directed towards a worker or a group of workers that creates a risk to health and safety”. “Bullying however will not include reasonable management practices, such as performance management conducted in a reasonable manner,” lawyers at Clayton Utz stated.
If the new processes go ahead, the Fair Work Commission will be required to initially consider a complaint within a period of 14 days, before making orders to deal with the complaint on a final basis, or refer the matter to the relevant state work health and safety regulator.
If it chooses to deal with a complaint on a final basis, the Fair Work Commission can impose penalties of up to $33,000, as well as make various orders, such as:
making orders requiring the employee’s employer to do, or not do, certain things to resolve the bullying complaint and prevent further bullying;
making orders relating to the employee, or other employees at the workplace, if required; and
publishing the orders to assist in preventing further bullying at the workplace.
What’s more, the changes would allow the commission the power to refer complaints to state work health and safety regulators, with Safe Work Australia set to take on a more educative role – namely by providing targeted training for managers and health and safety representatives.
The real concern for employers is that bullied employees may use the Fair Work Commission’s fast track system rather than going through their employer's own processes. According to Clayton Utz, doing so would not necessarily result in a quick resolution, as the complaint could be referred on to a state body. “Even if a complaint is referred to a state WH&S regulator, the Fair Work Commission could retain a role if the employee also makes an adverse action claim (for example, if he or she alleges dismissal as a result of making the bullying complaint).”
No draft legislation has currently been released, but the changes are likely to be implemented by 1 July 2013. More to come on HC.