From 1 January, a worker who reasonably believes that they have been bullied may apply under the Fair Work Act 2009 (Cth) for an order from the Fair Work Commission to stop the bullying. To prepare for the new laws, organisations are advised to review their processes and equip HR teams to deal with bullying claims.
The new laws seek to provide workers with a quick and affordable means of dealing with workplace bullying.
- A ‘worker’ is any person who performs work for a constitutionally- covered business and may bring a claim if they are bullied at work.
- ‘Bullying’ is any repeated and unreasonable behaviour that creates a risk to health and safety. Reasonable management action carried out in a reasonable manner is not bullying.
Once a claim is made, the commission has 14 days to start dealing with the claim. It is adopting a ‘triage’ approach to filter unmeritorious claims, but all claims are likely to reach at least the conciliation stage. If the commission finds there is bullying that creates a health and safety risk to the worker, it may make any orders it sees fit to address the issue. However, it cannot make orders for compensation, penalties or reinstatement.
It does have broad powers to make orders to stop bullying, including:
- That the bully stops the conduct.
- That the employer review its policies on bullying, complaints management and/or performance management.
- That the bully complies with those policies (as relevant).
- That workers be provided with training, extra support and/or information.
- That the employer monitor conduct.
Review internal policies
- Employers should review and update policies on bullying, complaints handling and performance management. If a claim is made, the employers’ performance management processes will be scrutinised by the commission.
- Employers need to train managers to effectively manage performance and be able to show that it was both ‘reasonable’ and had been conducted ‘reasonably’ in respect of the worker.
Review commercial arrangements
- Any person who performs work for a constitutionally covered business may make a bullying claim against the business, including contractors, subcontractors and volunteers.
- Although the commission is likely to take a ‘commonsense’ approach and is unlikely to make any orders with which employers cannot comply, employers should review and update commercial arrangements to address possible bullying claims and any liability arising from the behaviour of the contractor’s employees and/or any subcontractors.
Establish complaints handling processes
- Employers who respond to complaints quickly and effectively using internal processes will reduce the likelihood of a bullying claim being made to the commission.
- If a formal claim is made, an employer with a robust internal complaints mechanism may be able to obtain orders for the claim to be dealt with internally before being heard by the commission.
- The commission will also take into account internal complaints handling or investigative processes that are available to the worker, as well as the interim or final outcomes of those processes in making orders to stop bullying.
Consider approach to bullying claims
- Given the quick and informal approach that will be taken by the commission in dealing with bullying claims, employers should train HR managers to manage bullying claims and attend conciliation conferences, possibly even hearings.
- Employers should also consider whether they are prepared to provide legal or other support to managers and workers who are named as respondents to bullying claims. These decisions may be made after assessing internally whether a claim is likely or not to be made against those workers, but involve complex issues of privilege and conflicts of interest.
Encourage a culture that prevents bullying
- The best way to deal with the new laws is for employers to foster a workplace culture that prevents bullying in the workplace and addresses bullying swiftly if it occurs.
- To achieve this, employers need to commit to a long- term holistic ‘risk management’ approach to change prevailing attitudes and approaches to leadership and workplace relationships, and which is responsive to the needs of workers.
The anti-bullying laws represent a significant change in the legislative approach to workplace bullying and establish a framework for bullying to be dealt with in a manner that seeks to restore workplace relationships. Whether the new laws will achieve this is not yet clear – the approach of the commission over the next few months is likely to shape parties’ expectations as well as the strategies and practices of advisers in guiding parties towards resolution of these claims.