How New Anti Bullying Laws Affect Your Business - Part 2
In part 2 of our blog on the new anti bullying legislation that will commence on 1 January 2014, we focus on the new powers granted to the Fair Work Commission (FWC) to order an organisation or individual to cease bullying an employee or co worker. These new laws, passed by Federal Parliament on 27 June 2013, have been a source of contention by both business owners and the legal profession alike as little has been disclosed by the FWC as to the process that will be followed in dealing with an application and how the anti bullying orders will work in practice.
New laws on bullying
From 1 January 2014, under Part 6-4B of the Fair Work Act 2009, a worker who has been bullied at work will be able to apply to the FWC for an order to stop the bullying. A worker is deemed to be bullied at work if the worker is at work and either an individual or group of individuals repeatedly behave unreasonably towards the worker, or a group of workers of which the worker is a member and the behaviour creates a risk to health and safety.
Where the FWC is satisfied that the applicant has been bullied and that there is a risk that the bullying will continue then they may make any order it considers appropriate to prevent the worker from being bullied. In considering the terms of an order the FWC must take into the account:
- Outcomes arises out of any investigations into the matter being undertaken;
- Whether their are procedures in place already for the worker to lodge a complaint internally;
- Any other matters they consider relevant.
Examples of the orders that the FWC may make include an order requiring:
- the individual or group of individuals to stop the specified behaviour;
- regular monitoring of behaviours by an employer;
- compliance with an employer’s workplace bullying policy;
- the provision of information and additional support and training to workers; or
- review of the employer’s workplace bullying policy.
Once the order to cease bullying behaviour is made by the FWC any person who contravenes the order is liable to a maximum penalty of 60 penalty units ($10,200.00 for an individual and $51,000.00 for a corporation).
Recent decisions on bullying by FWC
It is uncertain as to how the FWC will process, assess and progress an application for a stop bullying order once the new laws come into affect. However, the recent case of Harris v WorkPac Pty Ltd may shed some light on the position the FWC will take on bullying in 2014.
In the Harris case, an employee had resigned and in an exit interview made a series of allegations stating that she had been bullied by her co worker, Mrs Harris, for a lengthy period of time. While Mrs Harris professed that the allegations were fictitious and without merit, WorkPac Pty Ltd terminated her employment alleging that her behaviour was gross misconduct.
While the FWC found that Mrs Harris was unfairly dismissed as there was no evidence of the bullying having ever taken place, Commissioner Cloghan stated that not all conflict between employees in the workplace should be classed as workplace bullying and that all employees require an element of resilience in the workplace. Commissioner Cloghan went further to state:
"the Commission should guard against creating a workplace environment of excessive sensitivity to every misplaced word or conduct. The workplace comprises of persons of different ages, workplace experience and personalities - not divine angels. Employers are required to pursue inappropriate behaviour but need to be mindful that every employee who claims to have been hurt, embarrassed or humiliated does not automatically mean the offending employee is “guilty of bullying” and “gross misconduct"".
The decision in Harris v WorkPac should provide employers and business owners some reassurance that the FWC will not misuse the powers granted to them under the new anti bullying laws and only grant orders for bullying to cease in circumstances where there is clear evidence that bullying has occurred in the workplace and not for applications that are clearly factious or where the applicant is hyper sensitive.
It is extremely important for employers and business owners to prepare for the new anti bullying laws that commence on 1 January 2014. These laws are designed to allow an employee who is genuinely a victim of workplace bullying to make an application to the FWC for an order for bullying to cease. While there may well be an influx of vexatious applications for bullying orders, employers should take the time now to ensure that they have complied with their obligations (including under the WHS Act) to ensure that they limit risk of an employee successfully obtaining an order from the FWC.
We recommend all organisations take time to review their workplace polices and the Draft Code of Practice on bullying released by Safe Work Australia to determine what steps, if any, your organisation will need to take to limit your liability from having an employee apply for a bullying order from the FWC. If you need any further information on your workplace policies please contact us.