03 Oct 2019

Commonwealth Workplace Protection Orders Bill could signify next step in protecting public service employees

By Jennifer Wyborn, Ali McMaster

While this Bill is limited to Commonwealth employees, if it does go ahead it will signify a leap forward in the coverage of Workplace Protection Orders for APS employees across Australia.

If you or your staff have ever been on the receiving end of aggressive behaviour, threats, or abuse in the workplace, then help could be on the way with the potential introduction of a Commonwealth Workplace Protection Orders Bill.

Although there is not much detail yet on what this Bill might look like, if enacted, a Commonwealth Workplace Protection Act could provide a useful tool for Commonwealth Departments and Agencies to protect their employees from threats or aggression in the workplace, and to do so on a national scale.

The Commonwealth Bill: What do we know?

At this stage, not a lot. This Bill was announced by the Department of Prime Minister and Cabinet as part of their list of legislation proposed to be introduced in the 2019 Winter/Spring sittings. The stated purpose of the proposed legislation is to: 

"Establish a scheme whereby the Commonwealth, through a department or other agency, can seek workplace protection orders as one of the options available to it in dealing with acts of aggression against staff and other customers."

Further, it aims to "address conduct interfering with the Government providing benefits or services, or affecting the work health or safety of staff or people accessing those services".

The Bill's announcement indicates that the Commonwealth is serious about tackling acts of aggression against its employees and other persons, and giving its Departments and Agencies the tools to do so.

While it is not yet clear what direction this Bill might take, the Workplace Protection Order scheme in the Australian Capital Territory provides a useful model for a future Commonwealth system.

What is a workplace protection order?

Currently existing only in the Australian Capital Territory, workplace protection orders (or WPOs) function like personal protection orders (PPOs) and are governed by the same Act: the Personal Violence Act 2016 (ACT).

However, unlike PPOs which usually need to be brought by the affected individual or certain other persons on their behalf, employers can apply for WPOs on behalf of their employees to protect them from personal violence at the workplace.  

ACT WPOs are also accessible to businesses in both the private and public sectors, unlike the Commonwealth Bill which would only apply to the Australian Public Service, However, the ACT regime is limited in that it is only accessible to businesses in the ACT, or there is some other connection with the ACT's jurisdiction.

As such, while the two pieces of legislation are distinct, it is likely the Commonwealth Bill will seek to address similar issues to those that ACT WPOs aim to combat. 

We've previously written about WPOs and their benefits, but to quickly recap, they can be an inexpensive, informal, and straightforward way for employers to step in to try to ensure the safety of their employees and protect them from threatening and/or harassing behaviour when this amounts to personal violence at the workplace.

Personal violence can include a range of behaviour, such as:

  • physical violence or abuse;
  • sexual violence or abuse;
  • threatening behaviour;
  • stalking; and/or
  • harassing, intimidating or offensive behaviour.

It can also include behaviour that damages property where this causes reasonable fear to a person at the workplace. Further, cases have shown that under analogous legislation, personal violence at the workplace can extend to conduct that has “as its nexus the relevant employee’s status and function as such”.

Practically this means that it can cover things like harassing, intimidating or offensive emails sent to employees' work emails, even where this occurs outside work hours.

In the face of threatening customers, abusive employees, intimidating ex-employees, and a range of other individuals who can and do harass people in the workplace, a WPO can be an effective way to shut these forms of personal violence down where other options, like calling the police, may not always bring this behaviour to a halt.

While receiving a WPO will not result in the recipient receiving a criminal record, being found guilty of breaching a WPO can. This is often a good enough deterrent to stop the behaviour in its tracks, or at least increases your options for tackling the behaviour if it continues.

However, as noted above, WPOs are currently limited in that there needs to be some connection with the ACT to apply for one. This means that they are not available where such a connection does not exist. Further, difficulties can crop up when it comes to enforcing such WPOs across jurisdictions. This is particularly the case when the violence is being conducted online or via emails where the perpetrator may not themselves be in the ACT. This can create difficulties in directly enforcing the WPO to stop this behaviour, because the power of the ACT Police to enforce WPOs is limited to ACT territory.

A Commonwealth Bill that adopted a similar regime would go some way to addressing this jurisdictional gap, in that it could be enforced across Australia wherever there are Commonwealth employees.  

Having said this, it will be interesting to see how the Commonwealth balances the protection of its employees at the workplace with ensuring that those entitled to access benefits and services from Commonwealth Departments and Agencies can continue do so, even where they are the subject of a WPO.

What could a Commonwealth Workplace Protection scheme mean for the rest of Australia?

Further detail about this Bill is yet to be released, but it will be interesting to see how the finer details are hammered out.

While it will to be limited to Commonwealth employees, if this Bill does go ahead it will signify a leap forward in the coverage of WPOs, which will go from a local to a national level and provide protection for Commonwealth employees across Australia.

This could in turn increase awareness of WPOs as an option for businesses to take action to protect their employees, which could see similar legislation being introduced in other jurisdictions, potentially leading to truly national coverage for all Australian employees to take steps to combat personal violence at the workplace. 

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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.