Amendments to the Fair Work Act introduced by the Federal Government in March will allow a worker who reasonably believes they have been bullied at work to apply to the Fair Work Commission for an order to stop the bullying. Charles Power outlines what this means for business.
Who may apply?
Any person who carries out work in any capacity for a person conducting a business or undertaking.
This includes a contractor and student gaining work experience or a volunteer. However it will not include members of volunteer associations and persons carrying out work for strata bodies corporate and incorporated volunteer associations.
An application to the FWC will attract a fee.
What kind of bullying will allow an application?
An individual, or a group of individuals, must repeatedly behave unreasonably towards the worker, and that behaviour must create a risk to health and safety.
The behaviour has to be repeated and unreasonable.
Repeated behaviour refers to the persistent nature of the behaviour and can refer to a range of behaviours over time.
Unreasonable behaviour is behaviour that a reasonable person, having regard to the circumstances may see as unreasonable (in other words it is an objective test). This would include (but is not limited to) behaviour that is victimising, humiliating, intimidating or threatening.
The bullying must occur while the person is engaged by a ‘constitutional corporation’, the Commonwealth, or a ‘Commonwealth authority’, or a body corporate incorporated in a Territory; or a person conducting a business or undertaking principally in a Territory or Commonwealth place.
What is not bullying?
Reasonable management action when carried out in a reasonable manner will not result in a person being ‘bullied at work’. For instance, reasonable performance management in which an employee receives fair and constructive feedback on their performance will not amount to bullying. Similarly , a disciplinary process initiated against an employee in a reasonable manner will not be bullying.
How will the FWC deal with the application?
The FWC must start to deal with an application within 14 days after the application is made.
The FWC may:
take steps to inform itself by contacting the employer or other parties to the application;
conduct a conference;
hold a formal hearing
make a recommendation to the parties;
express an opinion; or
refer the matter to a WHS regulator or another regulatory body.
What remedies can the FWC offer?
The FWC may make any order it considers appropriate to prevent a worker from being bullied at work by an individual or group of individuals.
The FWC cannot order reinstatement or the payment of compensation or a pecuniary amount.
The orders could also apply to others, such as co-workers and visitors to the workplace. The focus is on resolving the matter and enabling normal working relationships to resume.
Examples of the orders that the FWC may make include an order requiring:
the individual or group of individuals to stop the specified behaviour;
regular monitoring of behaviours by an employer;
compliance with an employer’s workplace bullying policy;
the provision of information and additional support and training to workers; or
review of the employer’s workplace bullying policy.
When considering the terms of the order, the FWC must consider outcomes of any investigation into the matter being undertaken by another body (ie internal investigations or WHS regulator), any procedures available to the worker to resolve grievances or disputes and any final or interim outcomes arising from any procedures available to the worker for resolving grievances or disputes.
Breach of any order made by the FWC to stop bullying will expose the offender to the imposition of a civil penalty.
About the author
Charles Power is a partner at Holding Redlich. T: +61 3 9321 9942 E: firstname.lastname@example.org
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