has reported extensively on the approaching changes to the Fair Work Act (2009),
due to take effect on 1 January 2014.
These amendments will empower the Fair Work Commission
(FWC) to deal with bullying complaints in the workplace. In addition, the changes will apply a legal definition of bullying as “repeated, unreasonable behaviour directed towards a worker or a group of workers that creates a risk of health and safety”.
Jessica Fletcher, employment and workplace health & safety special counsel at Hall & Wilcox, fears that some employees may disrupt the system by attempting to exploit the new definition and provisions to block legitimate performance management and disciplinary action.
“Employers who fail to ensure the people within their organisation responsible for managing workers know when, and how to best deal with performance issues, may be at a higher risk of having to spend time and money responding to bullying claims in the FWC,” Fletcher said.
Fletcher stated that the inclusion of volunteers, trainees, contractors and subcontractors under the ‘worker’ definition would also add to the surge of new claims hitting the FWC once the provisions are in affect.
"If applicants don't fully understand what is defined by the term 'bullying', or if they do understand, but are attempting to frustrate or delay a management process, the outcome is the same, and the losers will often be employers who have to expend time and incur costs in managing these complaints throughout the FWC process,” she said.
Key HR takeaways
Fletcher outlined the following three steps HR should take in the last few weeks leading up to the provisions to prevent unnecessary bullying claims:
Do you agree with Fletcher’s belief that bullying claims made to the FWC may surge? Why/why not?
- Review existing policies and contrast them with the new workplace bullying provisions to ensure the changes are reflected. This includes a definition of the term ‘bullying’, and details on how to proceed if it is identified in the workplace. This will help to demonstrate an organisation’s proactivity in dealing with bullying, should a claim be made against them.
- Conduct training in workplace behavior for both managers and employees – concentrate on the code of conduct/charter of the organisation as well as the revised provisions.
- Conduct training for managers on ‘performance management’ – what it is, how to do it, and how to ensure it is kept separate from bullying.