From 1 July 2013, employees of most Australian businesses may turn to the Fair Work Commission (FWC) with claims of workplace bullying. That is, if the Fair Work Amendment Bill 2013 is passed through the federal parliament, the FWC will possess a number of powers including the power to force employers to address workplace bullying complaints.
Who the new laws affect
In order to be able to apply to the FWC, an individual must be a “worker”. This definition, which is adopted from the Work Health and Safety Act 2011 (Cth), includes any individual who carries out work for a person conducting a business or undertaking, such as an employee, contractor, sub-contractor, work experience student or volunteer.
This does not include members of volunteer associations, individuals working for a strata body corporate, or incorporated volunteer associations. Further, ‘workers’ must be engaged by a constitutionally covered business or undertaking.
This would preclude workers who are engaged in a state by an individual, partnership, or body corporate that is not a constitutional corporation and may mean that local government bodies are also excluded.
When conduct could be considered bullying
The bill proposes a clear definition of bullying in the legislation. At present, the proposed definition provides that behaviour may be considered to be bullying if it is repeated, unreasonable, directed to a worker or a group of workers that includes the applicant, and creates a risk to health and safety.
Whether the behaviour complained of is ‘unreasonable’ will depend upon a consideration of the circumstances in which the alleged bullying occurred. Behaviour that is victimising, humiliating, intimidating or threatening will be considered unreasonable.
Reasonable management action will not be considered bullying. Managers and employers will be able to make decisions and direct work to be done lawfully if the decisions and directions do not leave the worker feeling humiliated or victimised.
Orders the FWC can make
Upon receipt of an application, the FWC will take preliminary steps to inform itself in each application and if it considers the application to warrant further action it may conduct a conference with the parties or hold a formal hearing. If the FWC is satisfied that the worker has been bullied in the workplace, it will have the power to make an order that the bullying must stop, order that the employer monitor the bullying, review relevant bullying policies for compliance and refer the claim to a Work Health Safety (WHS) regulator.
Breach of an order may result in a fine against the business or undertaking, however the FWC cannot order reinstatement or award compensation to a worker who is found to have been bullied.
Before making orders the FWC must consider any procedures that are available to the worker to resolve the matter, such as internal bullying processes and the outcomes of investigations being taken by another body. This means that if employers want to resist an FWC order they need to ensure they have robust internal bullying processes established.
The bill emphasises that the process of an application will be swift. The FWC is required to deal with a matter within 14 days of application. Dealing with a matter may include the FWC taking steps to inform itself about the case, then listing the matter for a conference or hearing.
If a conference or hearing is convened, representatives of the business or undertaking will be required to attend the FWC and be prepared to provide relevant information. Given that the FWC has the capacity to refer the matter to a WHS regulator, employers need to have a clear understanding of their legal responsibilities under WHS legislation. This will minimise the risk posed to health and safety by workplace bullying and ensure processes are in place to manage that risk.
Lessons for employers
Organisations need to review bullying polices to ensure they operate effectively and therefore discourages the FWC from becoming involved (if that is considered desirable). Employers also need to plan for scenarios in which their organization will be drawn into an FWC proceeding involving their employees, with decisions made on who will gather information and who will attend a conference.
Charles Power and Evan Willis work in the workplace relations and safety practice group at Holding Redlich in Melbourne as a partner and solicitor respectively.