On the 27th June 2013, the Fair Work Act 2009 was amended to give the Fair Work Commission anti-bullying powers. They will come into effect on the 1st January 2014.
What does this mean?
The amendments to the Fair Work Act:
- Allow workers to apply directly to the Fair Work Commission for an order to stop the bullying. The worker must reasonably believe they are being bullied. There is no income cap restricting those who can apply.
- Define “bullying at work” to be “repeated unreasonable behaviour by an individual or group of individuals towards a worker (or group of workers of which the worker is a member), where the behaviour creates a risk to health and safety whilst at work”.
- Require the Fair Work Commission to deal with an application for an order to stop bullying within 14 days of an application being made. In the process, employers and co-workers may be summonsed to attend a hearing or conference, or to produce documents.
- Give the Fair Work Commission the power to make any order it considers appropriate, other than financial penalties, reinstatement or compensation.
There is no time limit for an employee to make of an application to the Fair Work Commission. The worker needs only to remain in the workplace and still be exposed to circumstances that pose a risk. Additionally, the worker will not be precluded from commencing other actions under the Fair Work Act such as unfair dismissal or general protection applications.
The first step for the Fair Work Commission before making an order will be to satisfy itself the worker was bullied and there is an obvious risk the bullying will continue. They will consider:
- The outcome of any prior investigations into the matter.
- Whether there are any other procedures available to the individual to resolve the grievance and/or dispute.
What could this mean for Employers?
- There is no requirement for a worker to first raise a bullying concern internally.
- There will be greater scrutiny and expectation around performance management processes.
- It will be an imperative to thoroughly document all workplace investigations and ensure they are procedurally fair.
- The lack of clarity around what constitutes “bullied at work will possibly expose employers to claims arising from social media interactions or as a result of flexible work arrangements that are not clearly defined.
- This amounts to a new workplace right triggering general protection provisions and increasing exposure to adverse action claims.
- A order from the Commission may increase the success of workers compensation claims for psychological injury.
What do you have to do to be ready for 1 Jan 2014?
Peel has developed an Action Plan to assist with your preparation for 1st January 2014. Check it out here.
The bottom line is to ensure that all complaints made are responded to quickly and in sufficient detail.
To assist you in the implementation of your action plan you will find a copy of the following document on our website www.peelhr.com.au
Keep ahead of the change and start implementing steps now. If you require any assistance in relation to workplace investigations or training in Respectful Workplaces feel free to contact us at email@example.com or call (02) 4963 7373.