For the first time, from 1 January 2014, there will be an all-encompassing law that makes bullying conduct unlawful with a right to redress workplace bullying through the Fair Work Commission. Andrew Ball and Tass Angelopoulos outline what this means for business.
Workplace bullying has emerged as a prominent employment issue in recent years, however, there is no Australian legislation that specifically prohibits workplace bullying. Workers who want to pursue bullying claims have had to rely on other general laws such as workers' compensation laws, anti-discrimination laws, the general protection provisions of the Fair Work Act 2009 (Cth) and common law claims. In some circumstances, State and Commonwealth health and safety regulators have pursued bullying claims through health and safety legislation.
This will change, however, on 1 January 2014, when new workplace bullying laws will form part of the Fair Work Act 2009 (Cth). For the first time, there will be an all-encompassing law that makes bullying conduct unlawful with a right to redress workplace bullying through the Fair Work Commission.
The new laws follow the House of Representatives Standing Committee on Education and Employment Report of October 2012, Workplace Bullying, We just want it to stop, (Report). The Report recognises that workplace bullying is a hidden problem and it is estimated that workplace bullying costs the Australian economy between $6bn and $36bn every year and that a workplace bullying cases costs employers an average of $17,000 to $24,000 per claim.
Under the new laws a worker (which includes employees, contractors, subcontractors, outworkers, apprentices, trainees and students gaining work experience as well as volunteers) will have access to the laws if the worker believes that he or she has been bullied at work. A worker is bullied at work if an individual or a group of individuals repeatedly behave unreasonably towards a worker and that behaviour creates a risk to health and safety.
If the conduct complained of is "reasonable management action carried out in a reasonable manner," that conduct does not contravene the workplace bullying laws. However, there is no definition of what is "reasonable management action carried out in a reasonable manner." We expect that reasonable performance and conduct management will fall within this exception. However, we also expect workers will allege that performance and conduct management amounts to bullying conduct and that the management was neither reasonable nor was it carried out in a reasonable manner. This could lead to a significant cost for employers as they will be required to participate in a hearing in order to establish that the performance management is "reasonable management action carried out in a reasonable manner." It is also worth keeping in mind that the Fair Work Commission is essentially a no costs jurisdiction.
In order to attempt to avoid such a claim it will be important that all employers have an effective workplace bullying policy in operation and that employees are trained in relation to the policy.
If a claim is made, the Fair Work Commission must start to deal with an application within 14 days after the application is made. If bullying has occurred and there is a risk that it will continue, the Fair Work Commission can make an order to prevent the worker from being bullied. The Fair Work Commission, however, cannot order the payment of a pecuniary amount.
If the Fair Work Commission makes an order and the employer does not comply with that order, the worker could apply to the Federal Court or Federal Circuit Court to enforce the order. If the Federal Court or Federal Circuit Court determines that the employer has contravened the Fair Work Commission's order it can impose a civil penalty on the employer. The maximum penalty that maybe imposed on a corporation is $51,000 and $10,200 on an individual. Individuals involved in the contravention such as managers and directors could also be penalised.
About the authors
Andrew Ball is a Partner & Tass Angelopoulos is Special Counsel at DLA Piper