A heads up on the new federal bullying laws commencing 1 January 2014 From 1 January 2014 it is going to be simpler and easier for employees to bring bullying claims against their employers. Changes to the Fair Work Act 2009 will give employees the ability to apply to the Fair Work Commission for orders to stop bullying from occurring where they reasonably believe they have been bullied at work.
Bullying is defined in the Act as where an individual or group repeatedly behaves unreasonably toward a worker or group of workers, and that behaviour creates a risk to health and safety.
The Commission will not be able to award compensation to the employee, it will only be able to make orders to stop the bullying. This has been clarified by Commission President, Justice Ian Ross, who said “[t]his is not a compensation jurisdiction. The new anti-bullying jurisdiction is not an avenue to provide compensation to those who have been subjected to bullying; and nor is it about penalising employers. It is directed at preventing workers from being bullied at work.”
The Commission must deal with an application within 14 days after it has been made, so employers will also need to respond quickly. The Commission will emphasise mediation to resolve the issues. However, if an employer breaches orders that have been made to stop bullying, the employee will be able to apply to a court for compensation and penalties. There is a specific exception in the Act for reasonable management action carried out in a reasonable manner. This will apply to such things as performance management of employees. The exception is very broad, but also creates a lot of room for dispute over what is reasonable. For example, it will not be difficult for an employee to claim they have been bullied because they are experiencing stress after being subjected to what they may perceive as an unreasonable performance management process.
The provisions do not only apply to employees – they apply to any individual who performs work in any capacity. This includes contractors, subcontractors, outworkers, apprentices, trainees, work experience students and volunteers.
The Commission anticipates receiving 3,500 applications in the first year. Employers can prepare for the new laws by ensuring their workplace policies on bullying and harassment are in good shape and have good processes for dealing with complaints of
bullying and harassment. Employers should also make sure their policies are well known to employees and that employees have undergone training in how to address bullying behaviour.
For more information on the new bullying laws, contact Sean Melbourne on 0411 647 453 or