As outlined in our previous article in HHG E-Check, since January 2014, a worker may apply to the Fair Work Commission (the Commission) for an order to stop bullying at work under the Fair Work Act 2009 (the Fair Work Act).
The powers the Commission have been given by the Commonwealth Government acknowledge that bullying in the workplace is a health and safety issue, and that the nature of bullying requires there to be an independent body to whom workers can appeal for intervention.
Although there have been relatively few applications filed, and far less than some had predicted, it is only a matter of time before the new regime takes hold in the workforce as an avenue of redress. It remains to be seen whether it will serve the intended purpose of making workplaces safer, or whether it will in the main become an additional regulatory burden on business – especially small business – that fails to improve workplace effectiveness, efficiency and health. Do you have an understanding of the new laws and policies or procedures that are in line with them?
What is bullying at work?
Bullying is defined in the Fair Work Act as occurring when:
· a person or a group of people repeatedly behaves unreasonably towards a worker or a group of workers at work , and
· the behaviour creates a risk to health and safety.
Bullying can include the following types of behaviour:
· aggressive or intimidating conduct
· belittling or humiliating comments
· spreading malicious rumours
· teasing, practical jokes or ‘initiation ceremonies’
· exclusion from work-related events
· unreasonable work expectations, including too much or too little work, or work below or beyond a worker’s skill level
· displaying offensive material
· pressure to behave in an inappropriate manner.
· Unreasonable management action carried out in an unreasonable manner
The unreasonable behaviours must be repeated and therefore likely to continue in order for the Commission to intervene.
Bullying does not include reasonable management action carried out in a reasonable manner.
The Fair Work Commission provides a best practice guide for managing underperformance that if followed should enable businesses to avoid claims of bullying behaviour due to an unreasonable performance management process.
Who is a worker?
An individual who performs work in any capacity, including as an employee, a contractor, a subcontractor, an outworker, an apprentice, a trainee, a student gaining work experience or a volunteer.
What businesses are affected?
Workers in any constitutional corporation (including Pty Ltd companies) and Commonwealth entities are entitled to apply to the Commission for a ‘stop bullying’ order. Unsurprisingly, the Defence Force and Australian Secret Intelligence Service are excepted.
State Government and Local Government workers are not able to access the Fair Work Commission and must use State based industrial relations processes and associated commissions or tribunals. These alternative processes are not considered by this article.
Fair Work’s Anti-Bullying Process
A Worker completes an application for a stop bullying order and pays a $65 filing fee.
As the process is essentially concerned with mitigating risks to health and safety the Commission is required to deal with applications promptly. Within 14 days the Commission must decide to conduct either an (informal mediation) conference or a formal hearing. If necessary an investigation could also be launched.
If the Commission is satisfied that the worker has been bullied, and is likely to be continued to be bullied then it can issue a “Stop Bullying Order” on any terms it considers appropriate. This order may be directed at an individual, group of individuals or the business entity itself.
Importantly the Commission does not have the power to order compensation or impose fines.
Enforcing a “Stop Bullying Order”
If the terms of anti-bullying order issued by the Commission are breached or not complied with then the complaint may be escalated to the Courts for further intervention.
Interestingly not only the victim of the bullying has standing to apply to the Courts, the application can also be made by an industrial association (union) or a Fair Work Commission Inspector. The action can be brought in the State Magistrates Courts, Federal Circuit Court and ultimately on appeal to the Federal Court.
If contravention of the Commission’s order is established individuals can be fined up to $10,200 and Corporations $51,000. The fines can be ordered to paid to the Commonwealth and/or an individual affected. The Court may also order compensation for any loss suffered by an individual as a result of the Commission’s order being breached, grant an injunction to remedy the breach or order re-instatement if the person affected is no longer a worker.
This is general information only, and does not constitute specific legal advice. Murray Thornhill is the Director at HHG Legal Group with the Litigation/Commercial Law team. Nicole Young is a Criminal Solicitor with the Litigation/Commercial Law team at HHG Legal Group. If you would like further details in relation to this information, please contact Nicole on 9322 1966.