13 Feb 2013

How will new Federal procedures for dealing with workplace bullying complaints work?

The Federal Government's proposed introduction of a specific complaint process for workplace bullying, with quick and cheap access to the Fair Work Commission, recognises the serious impact of workplace bullying and its importance as a work health and safety issue.

It could however potentially lead to employees bypassing their employers' own internal anti-bullying procedures.

What is – and isn't – bullying

The Fair Work Act will be amended to define bullying, harassment or victimisation as "repeated, unreasonable behaviour directed towards a worker or a group of workers that creates a risk to health and safety".

Bullying however will not include reasonable management practices, such as performance management conducted in a reasonable manner.

Taking a bullying complaint to the Fair Work Commission

The Fair Work Commission will be required to list a complaint for initial consideration within 14 days. It can make orders to deal with the complaint on a final basis, or refer the matter to the relevant state work health and safety regulator.

If it chooses to deal with a complaint on a final basis, the Fair Work Commission can impose penalties of up to $33,000, as well as make various orders, such as:

  • making orders requiring the employee’s employer to do, or not do, certain things to resolve the bullying complaint and prevent further bullying;
  • making orders relating to the employee, or other employees at the workplace, if required; and 
  • publishing the orders to assist in preventing further bullying at the workplace.

In addition to providing for the Commission to refer complaints to state work health and safety regulators, the announcement also provides for an expanded educative role for Safe Work Australia. It will work with the States and Territories to develop training for managers and health and safety representatives to help them to better deal with workplace bullying.

What will this mean for employers and employees?

Traditionally, there has been no specific national jurisdiction dealing with allegations of workplace bullying, with cases being fit within the framework of laws dealing with discrimination, dismissal, adverse action, work health and safety, as well as personal injuries. While there have been many adverse action claims made to the former Fair Work Australia in relation to compliance with laws and allegations of bullying creating an unsafe workplace, this amendment will clearly define bullying as a separate cause of action. It remains to be seen how the proposed amendments will interact with these existing statutory and common law causes of action however.

What is clear is that for a bullied employee, the fast-track to the Fair Work Commission could induce them not to attempt going through their employer's own processes, but to go straight to the Commission. This however will not necessarily result in a quick resolution, as the complaint could be referred on.

Even if a complaint is referred to a state WH&S regulator, the Fair Work Commission could retain a role if the employee also makes an adverse action claim (for example, if he or she alleges dismissal as a result of making the bullying complaint).

No draft legislation has been released, but the Government has said it intends to have the changes implemented by 1 July 2013.

 

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.