Recent legislative amendments granted the Fair Work Commission (FWC) jurisdiction to deal with ‘bullying’ applications by workers. From 1 January 2014 a worker who reasonably believes he or she has been bullied at work may apply to the FWC for an order for the bullying to stop.
The FWC must start to deal with an application within 14 days of it being filed.
The FWC may do a range of things, including:
- list the matter for a conciliation conference;
- hold a formal hearing;
- make a recommendation; or
- express an opinion.
If satisfied that a worker has been bullied at work and that bullying would otherwise continue, it may make any order it considers appropriate, except an order for payment of compensation, reinstatement or penalties. However, a breach of an order will expose individuals and body corporates to penalties of up to AU$10,200 and AU$51,000 respectively.
The recently elected Coalition Government has indicated an intention to amend the bullying jurisdiction to first require that a worker seek preliminary advice from an independent regulator, prior to making a claim in the FWC. The Coalition policy is also drafted to extend bullying laws to include the conduct of union officials towards managers, employers and workers.
Action for employers
Employers should continue to be vigilant in reviewing and promoting their workplace behaviour policies and supporting systems to ensure that:
- the risk of bullying claims is minimised; and
- they are otherwise in a position to defend any claims that might arise.
Employers should also be aware that bullying allegations can be, and are regularly, investigated by state health and safety regulators. This can result in criminal charges brought against an employer or manager for failing to provide a safe workplace. The possibility of a prosecution should be considered concurrently with any response to a FWC proceeding.
Finally, appropriate monitoring and recording of workplace behaviour, complementing operative policies, can assist with identifying a longer term strategic approach to responding to the root causes of relevant incidents in the business over time.
More details can be found in this video.
Article written by Paul Burns, Partner and Steve Bell, Special Counsel.
Key contacts
Steve Bell
Managing Partner - Employment, Industrial Relations and Safety (Australia, Asia), Melbourne
Emma Rohsler
Regional Head of Practice (EMEA) - Employment Pensions and Incentives, Paris
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