On 1 January 2014, new changes to the Fair Work system take effect, including new anti-bullying measures following a recent government inquiry into bullying in workplaces.

The new changes empower workers who are bullied at work to apply to the Fair Work Commission (“the Commission”) for an order to stop the bullying quickly and inexpensively.

Who is eligible to make an application?

A new section will be inserted in to the Fair Work Act 2009 (“the Act”) to extend the definition of “worker” to include employees, contractors, subcontractors, outworkers, apprentices, trainees, volunteers and students gaining work experience.

When is a worker “bullied” at work?

The new laws will provide that a worker is bullied at work if another individual, or group of individuals, repeatedly behaves unreasonably towards the worker, and that behaviour creates a risk to health and safety. 

The implications of this definition are:

• The behaviour has to be repeated and there must be a “persistent nature” to it. This means that a “one-off” incident would be excluded from the Act;
• The behaviour has to be “unreasonable”. This is an objective test and is designed to exclude one-off instances of insensitivity or rudeness. This would include, but is not limited to, behaviour that is victimising, humiliating, intimidating or threatening;
• It is not necessary to show that damage has actually been caused, but it will suffice to show that the behaviour creates a “risk” to that person’s health and safety.

For the avoidance of doubt, bullying does not include “reasonable management action” when carried out in a reasonable manner, to ensure that employers are protected when performance-managing their staff.  This is because persons conducting business have rights and obligations to take appropriate management action and make appropriate management decisions such as taking disciplinary action, giving constructive feedback and directing the way work is carried out. Employers must still exercise care to ensure that workers are not victimised or humiliated when taking management action.

What can the Commission do?

Once the application is made, the Commission must deal with the complaint within 14 days. There are no limits for making an anti-bullying application, but the worker must still be employed at the business. Accordingly, if the worker has been dismissed, they cannot bring a bullying claim. However, this will not limit any rights to bring an unfair dismissal claim.

The new amendments empower the Commission to make any order it considers appropriate to prevent a worker from being bullied at work by an individual or group of individuals.

Examples of orders that the Commission may make include orders requiring:

• the individual or group of individuals to stop the specified behaviour;
• regular monitoring of behaviours by an employer;
• compliance with an employer’s workplace bullying policies;
• the provision of information and additional support and training to workers;
• review of the employer’s workplace bullying policy.

These orders will not be limited or apply only to the employer of the worker who is bullied, but may extend to co-workers and visitors to the workplace.

Lessons

Employers and businesses should familiarize themselves with the new laws and exercise caution when managing employees, contractors and other persons within their employ.

Employers should also ensure that staff are familiar with the new changes, as they may be held vicariously liable for any bullying that occurs at the workplace.

RKL can assist you with training and counselling your staff on the new laws, drafting and updating your workplace policies and advising you and your business on appropriate ways to performance manage staff to ensure your interests are protected and you are not exposed to bullying claims.

On the other hand, if you are feeling stressed at work because you feel like you are being bullied, our lawyers at RKL would be pleased to assist you to help you put a stop to it.

This article provides information that is general in nature and not a substitute for legal advice. Please contact Rudstein Kron Lawyers if you wish to obtain legal advice for your personal situation.