Beware the workplace bully!

What's happening?

Since 1 January 2014, employees have now been able to make complaints to the Fair Work Commission ('the FWC') about allegations of bullying in the workplace. These changes have been introduced into the Fair Work Act 2009 (Cth).

Who does it apply to?

So far, the new laws only apply to certain types of employers, including:

• corporations, such as "Pty Ltd" companies;
• the Commonwealth or Commonwealth authorities;
• bodies corporate incorporated in a Territory; or
• businesses conducted primarily in a Territory.

The new laws do not currently apply to other business entities in Victoria, such as sole traders, partnerships and/or incorporated associations. However, the laws may soon expand to cover such entities so watch this space and be prepared!

For businesses covered by the new laws, they apply to a broad range of "workers", including employees, contractors, subcontractors, apprentices, students, trainees and volunteers. However, they do not apply to members of the Defence Force.

What does it cover?

Bullying is defined as repeated unreasonable behaviour directed at a worker or group of workers that creates a risk to health and safety and is likely to be ongoing. This can involve aggressive or intimidating conduct, unreasonable work expectations, or pressure to behave in an inappropriate manner.

It does not cover reasonable management action, such as necessary performance management, so long as such action is carried out in a reasonable manner.

What will happen?

These new developments are likely to bring about increased scrutiny of businesses and their ability to handle bullying in the workplace.

A worker in a business that is covered by the new laws can make an application to the FWC for an order to stop the bullying. The FWC must then start to deal with the dispute within two weeks, including that it can order the relevant people to attend mediation, it can conduct a private conference with the parties or it can conduct a formal hearing.

If the FWC is satisfied that workplace bullying of a protected worker has occurred and that there is a risk it will be ongoing, the FWC can make various orders, including for the bullying to stop, for parties to comply with workplace policies and/or for training to be undertaken by relevant people.

The FWC does not have the power to award any monetary compensation to a "bullied" worker in the first instance. However, if an order made by the FWC is not complied with, then a civil penalty can be imposed of up to 60 penalty units for an individual (currently $10,200.00) or up to 300 penalty units for a body corporate (currently $51,000.00). However, monetary settlements are not promoted or recommended by the FWC. Instead, mediation and conciliation are strongly encouraged to resolve any claims.

What next?

The first step is to have good policies in place that relate to workplace bullying and the next step is to ensure compliance with those policies by all workers in your business. This should include:

• Ensuring that you develop or update your anti-bullying policy. Your policies should also address other issues such as harassment, discrimination and all forms of unreasonable behaviour;
• Providing an internal complaint process that employees can access before making a complaint to the FWC; and
• Ensuring that all staff are trained to be aware of and respond to bullying in the workplace.

For further guidance about getting your business ready, responding to a claim, or any other employment matters, please feel free to give us a call on 1300 205 506 or send an email to sp@sharrockpitman.com.au.

The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.

Liability limited by a scheme approved under Professional Standards Legislation.