By Wisewould Mahony
March 23, 2015
The Fair Work Commission’s (FWC) new bullying jurisdiction and anti-bullying laws commenced operation on 1 January 2014 and forms part of the Fair Work Amendment Act 2013 (Cth) giving “workers” the right to apply to the FWC for an Order to stop bullying at work from continuing.
A worker is “bullied” if an individual or group of individuals:
1. repeatedly behaves unreasonably towards a worker or group of workers at work; and
2. the behavior creates a risk to health and safety.
Importantly, the Fair Work Act 2009 (Cth) carves out a specific exclusion in relation to “reasonable management action” carried out in a reasonable manner. This may include, for example, performance management, justified disciplinary action for misconduct and/or warning workers with regards to poor performance or inappropriate work behavior.
“Workers” who reasonably believe they have been bullied at work can now make an application to the FWC for an Order to stop bullying conduct.
The definition of “worker” includes not only employees but extends to contractors, subcontractors, trainees, labor hire company employees and volunteers.
There are no time limits for workers making an application to the FWC, however it is not enough to show that the worker reasonably believes he or she has been bullied at work –there must also be a risk that the bullying will continue.
The FWC must start dealing with the application within 14 days.
Employers/principals (and the person(s) the worker has alleged is bullying them) must ensure they are prepared to respond promptly (within 7 days of the FWC serving an application on them).
Employers/principals may dispute a bullying application on a number of different grounds.
If the dispute cannot be settled at a private mediation and the worker can establish all of the required elements, the FWC can make an order to stop the worker from being bullied at work by the individual or group – a “Stop Bullying” Order.
Unlike unfair dismissal or general protections applications, the FWC cannot make orders requiring financial compensation and cannot issue fines or penalties.
However, serious consequences may potentially flow if businesses/individuals fail to comply with a “Stop Bullying” Order. For example, the Federal Court or Federal Circuit Court may award financial compensation in addition to penalties of up to $10,200 for individuals and $51,000 for corporations.
Workers who believe they are being bullied at work can now effectively “bypass” their employers/principals and go straight to lodging a bullying complaint with the FWC.
Employers/principals will therefore need to ensure they react quickly if a complaint is received and conduct a thorough and fair investigation and take appropriate remedial action. This will be particularly important given they may have to appear before the FWC within 14 days.