Australia: Bullying, flexible work and unions: Implications for employers regarding proposed amendments to the Fair Work Act

A new ‘bullying’ cause of action?

On Tuesday 12 February 2013, Minister for Employment and Workplace Relations Bill Shorten announced that the Government intends to amend the Act to allow an employee who believes they have suffered bullying at work to seek assistance through the Fair Work Commission (FWC). The proposed changes are said to constitute the Government’s response to the parliamentary inquiry into workplace bullying (the Inquiry). It is currently proposed that the amendments will be presented to parliament in March with the amended legislation coming into effect from 1 July 2013.

How will ‘bullying’ be defined?

The Government proposes to adopt the Inquiry’s recommended definition that ‘bullying, harassment or victimisation means repeated, unreasonable behaviour directed towards a worker or a group of workers that creates a risk to health and safety’.

‘Reasonable management practices’, including performance management conducted in a ‘reasonable manner’, will be excluded.

How will this new jurisdiction operate?

Workers who have suffered bullying will be able to make a complaint to the FWC. At this stage it is unclear whether a specific time period will be applied regarding when such complaints must be made.

The FWC would then list the matter ‘for consideration’ within 14 days. Based on the interviews given by the Minister on the proposal, this ‘consideration’ has been variously described as a ‘hearing’ (but not a ‘full-on’ hearing) or a conciliation or conference. It is not clear at this stage whether attendance by employers at a conciliation would be required under the Act or whether an employer could choose to participate.

It appears that bullying complaints will be able to be brought against individual employees as well as the employee’s employer. 

How does this proposed jurisdiction operate with existing laws?

Currently state Work Health and Safety (WHS) regulators (e.g. WorkCover in NSW) have jurisdiction to investigate and prosecute bullying allegations.  Individual workers cannot initiate proceedings in this jurisdiction.

If the alleged bullying or harassment relates to a protected ground (e.g. race) an employee can also bring a claim under state and federal anti-discrimination legislation or in the federal ‘adverse action’ jurisdiction.

Under the Government proposal, the FWC will have the power to make their own orders to resolve the complaint and/or refer the matter to the relevant state WHS regulator. Civil penalty orders and fines may also be awarded.

Despite the premise for this proposal, the changes appear to be more directed at reacting to bullying rather than encouraging or requiring a pro-active bullying management culture. This latter area may remain more the domain of the state WHS regulators.

Implications for employers

The introduction of a new avenue for bullying complaints will significantly increase employers' exposure to claims in respect of bullying.

Employers will also need to be conscious of the definition of ‘bullying’ and implement training specifically for mangers who may be involved in performance management processes. Making the factual distinction between bullying and reasonable management action may also lead to an increase in workplace investigations.

If a matter heard by FWC is referred to the state WHS regulator, an employer may need to deal with the issue on both fronts, thereby increasing the time and complexity for resolving bullying issues. The extent of interplay between safety and industrial laws is unclear, and has the potential for confusion between different regulators, operating in different jurisdictions.

Targeting the ‘family’ vote

Flexible work

On Monday 11 February 2013, the Minister announced the Government would also amend the Act to broaden the right to request flexible working arrangements to more workers. Currently the right to request flexible work is limited to parents of under school age children or children under 18 years of age who have a disability.

The existing ‘right to request’ provisions will be extended to include:

• workers with ‘caring responsibilities’;
• employees who are parents or who have responsibility for the care of a child of school age;
• employees with disability;
• mature-age employees; and
• workers experiencing family violence and workers providing personal care, support and assistance to a member of their immediate family or member of their household because they are experiencing family violence.

Importantly, while the Act provides that employers can only refuse requests from such workers on ‘reasonable grounds’ (and the Government intends to provide more guidance on this term), there is no proposal to make this decision reviewable by the FWC. As such, employers can expect claims for such a review through the FWC to be pursued as part of the bargaining agenda of unions. 

Parental leave

On 13 February 2012, the Minister also announced changes to the Act to improve parental leave and protections for pregnant workers.

Under these changes, the Government will:

• increase the entitlement for parents taking unpaid leave together from 3 to 8 weeks;
• allow parents to choose when they can take their unpaid parental leave together;
• ensure that pregnant women can transfer to a safe job where available, regardless of their period of service;
• ensure that women who take unpaid special maternity leave are not penalised by a reduction in their unpaid leave entitlements; and
• provide an express right to request a return to work on a part time basis after taking unpaid parental leave.

Consultation 

On 14 February 2013, the Minister then announced plans to incorporate a new duty in award and agreement model consultation clauses for employers to genuinely consult employees before changing rosters or working hours. The focus will seemingly be on the impact of the proposed changes on an employee's family life. This amendment was foreshadowed by the Prime Minister earlier in the week, when she announced that the Government would make changes to strengthen protections and promote further flexibilities for the 'modern family' in the workplace.

Other bills

Tony Abbott and Bob Katter have also recently introduced private members’ bills proposing further changes to the Act.

Mr Katter’s bill proposes changes to the Act to remove the restrictions preventing FWC from dealing with disputes by arbitration.¹ 

Mr Abbott’s bill focuses on applying the same regime to unions that applies to companies.² The bill proposes that the obligation on union officials to act honestly and in good faith is strengthened and penalties are increased for officials who fail to do so.

Mr Abbott has also announced that, if elected, he would seek to establish a Registered Organisation Commission to manage and enforce the above bill. Mr Abbott has also reiterated that the Coalition would re-establish the Australian Building and Construction Commission.

Next steps

The Government has announced that it will finalise details of the new provisions in consultation with stakeholders. However, the extent of the proposed changes are still far from clear. Employers will need to be vigilant in monitoring the anticipated announcements of further changes to the Act. We will assist by providing timely updates on the Government's reform agenda. 

While the Government has indicated a preference for the proposed amendments to become law prior to the election later this year, it remains to be seen whether the required parliamentary processes will be completed in time. This will also depend on the response of the Coalition to each measure (which, apart from the union issue addressed above, has not been announced).

This article was written by Justine Turnbull,  Partner, Jane Wright  and Lauren Barel Senior Associates, Sydney.

Endnotes

1. Fair Work Amendment (Arbitration) Bill 2013
2. Fair Work (Registered Organisation) Amendment (Towards Transparency) Bill 2013

More information

For information regarding possible implications for your business, contact a member of the Employment, Pensions and Incentives Team.