After much wait and discussion Safe Work Australia has finally released another version of the draft code of practice "Preventing and Responding to Workplace Bullying". This draft code will remain open for public comment until 15 July 2013. A copy of the draft code can be found here.
What is workplace bullying?
The draft code defines workplace bullying as "repeated and unreasonable behaviour directed towards a worker or group of workers that creates a risk to health and safety".
Although a single incident of unreasonable behaviour would not automatically be considered workplace bullying, given the potential for escalation of single incidents into repeated behaviour the draft code notes that these incidents should not be ignored.
The draft code also sets out the test for unreasonable behaviour as an objective one, namely behaviour which "a reasonable person, having regard for the circumstances, would see as unreasonable, including behaviour that is victimising, humiliating, intimidating or threatening".
Notwithstanding that the typical example of workplace bullying is usually between managers and workers, workplace bullying may also occur sideways (between co-workers) and upwards (from workers to managers). However the draft code makes clear that reasonable management action taken in a reasonable way would not constitute workplace bullying for health and safety purposes
Fair Work Amendments
As many of our readers would already be aware from the news, the Labor Government has proposed amendments to the Fair Work Act 2009 (Cth) to introduce so-called "anti-bullying" provisions. These provisions would allow a worker who is being bullied at work to apply to the Fair Work Commission (FWC) for various remedies to deal with the bullying behaviour, including orders to stop such conduct occurring. The FWC must begin dealing with the matter within 14 days of the complaint and there is no requirement that the worker attempt to resolve the matter internally before going to the FWC.
The proposed amendments have yet to pass the Senate, however if passed they will commence from 1 January 2014. We will keep readers informed of the progress of these changes.
Get in early – comments and policies
As the draft code is open for public comment for the next month, now is the perfect time to review the draft code, see how it will impact on your business and make comments for Safe Work Australia to consider (including whether you believe the definition should be expanded or narrowed).
Given that it is unlikely the draft code will change in any significant way employers should get in early updating their bullying and harassment policies (and associated WHS policies), making it clear what is and isn't bullying behaviour. This is important as depending on the length of time that has elapsed since such policies were amended (and employees trained in them) it may take time for the changes to be understood at your workplace, allowing employers to be prepared to successfully defend FWC bullying complaints should the amendments become law by 1 January 2014.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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