New Anti-Bullying provisions of the Fair Work Act commenced on 1 January 2014.
Loss of reputation is a major risk to businesses if stop bullying orders are published on the FWC website. It is highly likely that this will result in significant media scrutiny as public support for bullying to cease in workplaces escalates.
The new provisions allow employees who reasonably believe they have been bullied to apply to the Fair Work Commission (FWC) for an order to stop the bullying. Bullying is repeated and unreasonable behaviour directed towards an individual or group of workers that creates a risk to health and safety. Bullying can include unreasonable work expectations, aggressive conduct, exclusion from work related events, spreading malicious rumours and other belittling, threatening or humiliating behaviours.
The Fair Work Act remedies apply to workers in constitutionally covered businesses. Workers can include employees, contractors, volunteers, work experience students and others. There is no time limit on the making of an application, no income cap restricting those who can apply for an order and no requirement that the worker first raise the issue internally before seeking FWC assistance.
Though the Commission must start dealing with application within 14 days, this does not necessarily mean a hearing will take place within that time. Applications will be prioritised on the basis of the risk to the parties involved.
The process can begin with an investigation and if satisfied that bulling has occurred and there is a risk it can continue, then orders to stop the bullying can be made to an employer, an alleged bully and/or to co-workers. Orders may require an individual or group to stop a particular behaviour, monitoring of behaviour by an employer, training, review of policies and so on. Costs may be awarded by the Commission.
A worker who has made an application to the Commission can at the same time seek intervention under the relevant state or territory work, health and safety (WHS) law. Information about the bullying acquired by the Fair Work Commission may be given to the relevant WHS regulator.
If any terms of the order to stop bullying is breached, application can be made to the Court for an order for a financial penalty against the alleged wrong-doer. This application can be made by a person affected by the contravention, an industrial association or a Fair Work inspector within 6 years of the alleged contravention.
If the alleged bullying is actually reasonable management action carried out in a reasonable manner then bullying will not be found to have occurred. Reasonable management actions can include performance appraisals, addressing unsatisfactory performance and disciplining a worker for misconduct. To ensure that these critical management behaviours are carried out in a reasonable manner, we recommend written policies and the training of managers in how to conduct these actions. The added advantage is that investing in these preventative measures also enables an efficient, effective, high performing culture with resultant benefits to the business bottom line.
When deciding on whether bullying has occurred, the FWC can consider any outcomes from any investigation that is or has been undertaken and any grievance procedure available to the worker. In-house investigations are not privileged, and all notes and documents can be the subject of a subpoena. Also, a worker can only make an application to the FWC in situations where the bullying is still occurring. It is therefore imperative that employers have best practice anti-bullying policies and grievance procedures in place and that everyone, especially managers, are trained in applying these correctly.
We find that although many employers have written policies and procedures, these are not effective because staff don’t know about them or don’t trust that allegations will be investigated fairly or impartially. Training must cover not only what is contained in the documents but how to effectively implement them.
Anti-bullying training is an extremely complex and specialist area. Anti-bullying training is most effectively conducted by trainers who have at least five years experience in bullying and harassment prevention training, have extensive knowledge of the relevant State and Federal anti-discrimination and WHS laws and relevant cases, and have preferably written anti-bullying policies and procedures and managed workplace grievances. This depth of knowledge and experience is vital to understand the very grey areas involved in bullying and harassment behaviours, the laws and how these are applied and how workplaces can effectively deal with the many complex issues involved. Flexibility At Work provides this specialist knowledge and experience in their highly interactive, innovative anti-bullying training workshops.