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Australia – Anti-Bullying Amendments Inserted Into Fair Work Act.
28 July, 2013

Legal News & Analysis – Asia Pacific – Australia – Labour & Employment

 

On 27 June 2013, the Commonwealth Parliament passed the Fair Work Amendment Bill 2013 that, among other things, granted the Fair Work Commission (FWC) jurisdiction to deal with workplace bullying. 


What powers will the FWC have?


From 1 January 2014, amendments to the Fair Work Act 2009 (Act) will allow a worker who believes that they have been bullied to apply to the FWC for an order to stop the bullying. The provision is not limited to employees but extends to contractors, labour hire personnel and persons engaged under other workplace arrangements.


The FWC will be required to commence dealing with an application for an 
order to stop bullying within 14 days of an application and may make any 
orders it considers appropriate to stop the bullying, other than an order for the payment of a pecuniary penalty. Before making an order, the FWC must be satisfied that the worker would otherwise continue to be bullied.


Breach of such orders may lead to penalties of up to $10,200 for an individual or $51,000 for a body corporate.


When is someone “bullied at work”?


In giving effect to this amendment a new definition of “bullied at work” was 
also introduced into the Act. The Bill introduces a new section 789FD into 
the Act, providing that a worker is “bullied at work” if an individual or group repeatedly behaves unreasonably towards that worker and that behaviour creates a risk to health and safety.


The definition in the new section 789FD is consistent with that proposed 
in the Safe Work Australia draft model Code of Practice: Preventing and 
Responding to Workplace Bullying. 


Although “unreasonable behaviour” is not defined in the amended Act, the draft model Code of Practice defines unreasonable behaviour as behaviour that a reasonable person, having regard for the circumstances, would see as unreasonable, including behaviour that is victimising, humiliating, intimidating or threatening. 

 

Given the reference to the draft model Code of Practice in the Explanatory Memorandum to the Bill, it is likely that a Court would refer to this definition in interpreting the Act.


Examples of behaviour, either intentional or unintentional, that may be 
considered workplace bullying if they are repeated, unreasonable and create a risk to health and safety include:

 

  • (a) abusive, insulting or offensive languae or comments;
  • (b) unjustified criticism or complaints;
  • (c) setting unreasonable timelines or constantly changing deadlines;
  • (d) spreading misinformation or malicious rumours; and
  • (e) changing work arrangements, such as rosters or leave,
  • to deliberately inconvenience a particular worker or workers.

 

Importantly, reasonable management action carried out in a reasonable 
manner will not be considered bullying. 


Implications for business

 

Businesses should ensure that they: 

 

  • understand the scope of the FWC’s new bullying powers and the orders that can be made;
  • understand the definition of “bullied at work” and appreciate the difference between bullying and reasonable management action; 
  • have a clear policy stating that bullying is unacceptable, and conduct training in respect of this policy;
  • have a procedure for addressing allegations of bullying in the workplace in a prompt and fair manner; and
  • manage the risk of bullying by, for example, monitoring patterns of behaviour (e.g. absenteeism) and conducting regular ‘health checks’ on the business.


Who does this Insight affect?


The new bullying provisions apply to all “constitutionally-covered businesses” including all registered corporations, the Commonwealth, Commonwealth authorities and body corporates incorporated in a Territory that conduct a business or undertaking. 

Notably, the amendments do not apply to certain State public sector 
employees or unincorporated partnerships, although State work health safety legislation will continue to apply. 


The Defence Force and a number of federal security agencies have also 
been carved out from the application of the bullying amendments.

 

Who does this affect?

 

  • The new bullying provisions apply to all “constitutionallycovered businesses” including all registered corporations, the Commonwealth, Commonwealth authorities and body corporates incorporated in a Territory that conduct a business or undertaking. 
  • Notably, the amendments do not apply to certain State public sector employees or unincorporated partnerships, although State work health safety legislation will continue to apply. 
  • The Defence Force and a number of federal ecurity agencies have also been carved out from the application of the bullying amendments.


Highlights 

 

  • From 1 January 2014, the Fair Work Commission will have jurisdiction to deal with workers’ applications to stop bullying.
  • To give effect to the new jurisdiction, the Fair Work Act has been amended to include a new definition of “bullied at work”.

 

 

For further information, please contact

   

Scarlet Reid, Partner, Henry Davis York
scarlet_reid@hdy.com.au

 

Cassie Howman-Giles, Henry Davis York
cassie_howman-giles@hdy.com.au
 
Nathan Roberts, Henry Davis York
nathan_roberts@hdy.com.au
 

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