The amendments of the Fair Work Act 2009 (Cth) regarding bullying will come into effect 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”.
Amber Chandler, partner at law firm Kaden Boriss, highlighted the use of the word ‘unreasonable’. She stated that there is “a very fine line” between reasonable and unreasonable management action, which will impact the FWC’s decisions.
“The FWC will now not only be dealing with bullying between employees and the usual cases of bullying by problematic managers/ supervisors, they will also be deciding when performance management crosses over into bullying,” she explained.
To avoid reasonable performance management being mistaken as bullying, Chandler recommended organisations ensure due process is consistently followed, with written records kept by the employers as evidence that fairness has been afforded at all times. These records include notices of meetings and relevant issues, the availability of a support person, as well as the opportunities given to prepare and respond to issues.
Key HR takeaways
Chandler outlined five key areas that HR must address to ensure they are prepared for 1 January:
Make sure a clear anti-bullying policy is implemented in the workplace.
Communicate the policy to management and staff through supervision and training – ultimately having it become a crucial part of workplace culture.
Establish a formal complaints procedure that goes beyond a grievance procedure. This will ensure bullying complaints are given management priority.
Establish clear investigation and mediation processes.
Regardless of the seniority of the perpetrator, ensure the bullying policy and procedure is applied consistently and fairly.
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