As reported to our readers on 19 June 2013 in " What's in the nature of a bully?", new anti-bullying laws were proposed (and subsequently passed), giving the Fair Work Commission (FWC) jurisdiction to hear bullying complaints and issue appropriate orders on and from 1 January 2014. The Coalition Government has indicated it will keep these laws with one possible amendment adding in a "preliminary step" before FWC becomes involved – we will keep readers updated if and when this occurs.
Interaction with WHS
Broader definitions
The anti-bullying laws rely on the WHS definition of worker, that is, a worker has been bullied. This increases the scope of those able to seek redress through the FWC beyond employees to contractors, subcontractors, the employees of contractors/subcontractors, apprentices, worker experience students and volunteers (to name a few).
Involvement of WHS Regulator(s)
Part of the new anti-bullying laws allows the FWC to make any order it considers appropriate (other than a pecuniary order) where it is satisfied that a worker has been bullied and there is a risk that the bullying will continue. The FWC may also refer the matter to a WHS Regulator.
Where such an order is made, this could be used by WHS Regulators (eg WorkCover NSW) in relation to prosecutions for breaches of WHS laws as evidence that bullying has occurred (and thus comprising a risk to health and safety). Such evidence could highlight the absence of the organisation taking reasonably practicable steps to prevent the bullying conduct and also the failure of the organisation's officers with respect to their independent due diligence obligations.
Fines for breaches of WHS laws can be up to $3,000,000 for organisations, $600,000 and/or 5 years imprisonment for officers and $300,000 and/or 5 years imprisonment for other individuals.
Interaction with Workers Compensation
The anti-bullying laws expressly state that "reasonable management action carried out in a reasonable manner" is not workplace bullying. In terms of workers compensation, reasonable performance management carried out in a reasonable way is a well known exception to the payment of compensation.
On this basis, it is clear that the potential impact of a FWC order could be that it would be used by employees to support a workers compensation claim on the basis that the FWC could not make such an order unless workplace bullying occurred – that is, there was no circumstance of reasonable management action carried out in a reasonable manner. The timeframe for FWC to begin dealing with bullying complaints (14 days) will also make it difficult for employers to gather enough evidence in support of its position in time.
Interaction with Damages Claims
Similar to the above, a FWC order would arguably constitute evidence of workplace bullying that could be used by individuals with respect to common law damages claims. This is not a light risk for businesses to consider – a Victorian case in the middle of this year awarded a worker nearly $600,000 in damages after it found she was bullied, harassed and intimidated in circumstances where there was an absence of any bullying and harassment policies.
Practical Steps
Clearly the scope of the anti-bullying laws is far reaching and could hit many businesses from different angles at the same time, tying up time and resources in defending multiple proceedings, including criminal sanctions under WHS laws. On this basis, key practical steps which should be taken by all businesses now include:
- Review and update existing bullying, harassment, grievance and WHS policies and procedures (or develop these where they do not yet exist).
- Contemplate developing social media and strong IT policies – bullying can just as easily (and often does) occur in the IT space.
- Train staff (officers, managers and workers) on bullying and harassment and inform them on how they can make an internal complaint and the informal/formal means of dealing with them.
- Lead by example – culture will be a big feature in the new laws and senior managers and officers should lead by example and indicate that bullying conduct will not be tolerated regardless of who engages in it (whether between co-workers or even a worker bullying their supervisor).
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.
