19 SEPTEMBER 2013
From 1 January 2014, workers may apply to the Fair Work Commission for an order to stop bullying in the work place. This change in the Fair Work Act is significant because at present there is limited legislation in Australia which prohibits workplace “bullying”.
Under the new laws, a worker will be found to have been “bullied at work” where an individual or group behaves unreasonably towards that worker and that behaviour creates a risk to health and safety.
While the new laws do not expressly say what amounts to “unreasonable behaviour”, we consider the courts will interpret the legislation with reference to Safe Work Australia’s Code of Practice. This Code sets out possible examples of workplace bullying of insulting or offensive language, unjustified criticism or complaints, continuously and deliberately excluding someone from workplace activities, setting unreasonable timelines and changing work arrangements (such as rosters and leave) to deliberately inconvenience a particular worker.
The anti-bullying provisions apply to all “constitutionally-covered businesses” which includes companies as well as Commonwealth departments. Workers covered by these new laws are not limited to employees but also include contractors, subcontractors, trainees and volunteers.
While the Fair Work Commission is not authorised to impose financial penalties for findings of bullying, a breach of a stop bullying order by an employer may lead to fines of up to $10,200 for individuals and $51,000 for companies.
Given the impending changes, we recommend that employers act now to ensure:
a) they are familiar with the new laws and review and amend where necessary their anti-bullying employment policies;
b) that all workers receive training in relation to the new anti-bullying laws and that this training is documented; and
c) clear procedures are implemented for responding to allegations of workplace bullying so complaints are addressed in a fair and orderly manner.
It is important to be aware that the Fair Work Commission may review an employer’s policies in the event of an application by an aggrieved worker, so we recommend that the policies are clear and training records are kept up to date.
We would be pleased to assist you in reviewing and updating your employment policies to address the new anti-bullying laws and to advise you generally in relation to the impact of the new laws on your business.
You are a valued Kinneally Miley contact, for more information related to this Legal Update please contact us.
[contactsbox] [leftcolumn]Contact Partner: Michael Coe
Direct Telephone : 07 3210 5709
Mobile Telephone : 0408 983 876
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