The effect of the anti-bullying laws.

Posted by Malcolm Campbell on 29 October 2015
The effect of the anti-bullying laws.

Further to our recent blog about Workplace Culture – How to get it right., there have been some recent developments in the anti bullying laws which emphasis the potential costs and consequences of not getting a workplace culture and behavioural standards right.

Workplace bullying laws were introduced by amendment to the Fair Work Act 2009 (FW Act) on 1 January 2014 and the Fair Work Commission (FWC) handed down its first formal ruling under the workplace bullying laws in August 2015 (CF and NW And Company A and ED [2015] FWC 5272).

In that case before Commissioner Hampton in the FWC, employees of a Victorian Real Estate business were successful in their application seeking stop bullying orders against their employer and the employer’s Property Manager.  The applicant workers alleged the employer and the Property Manager engaged in conduct including:

  1.  belittling conduct towards them;
  2.  swearing, yelling and use of otherwise inappropriate language in the workplace;
  3.  daily interfering with and undermining of the applicants' work;
  4.  physical intimidation and "slamming" of objects on the applicants' desks;
  5.  attempts to incite the applicants to victimise other staff members; and
  6.  threats of violence

Whilst the applicant workers had firstly attempted to resolve their concerns by raising the matter with their employer who carried out an informal investigation and initiated mediation, the issues were not resolved.  The relocation of the Property Manager to another associated firm also did not resolve the issue due to ongoing interaction between the businesses, the Property Manager returning to the applicant worker’s employer’s premises and a failure of the employer to foster an environment in which the applicant workers felt safe. 

The Work Health and Safety Act 2011(NSW), defines bullying at work as when:

  •  the worker is at work in a constitutionally covered workplace;
  •  an individual or group of individuals repeatedly behaves unreasonably towards the worker, or group of workers of which the worker is a member, and
  •  that behaviour creates a risk to health and safety.

In this case, the employer acknowledged the workplace had created a risk to the health and safety of the applicant workers. Commissioner Hampton concluded that, within the meaning of section 789FD of the Fair Work Act, the applicant workers had been bullied and that there was a risk that the bullying would continue and hence he made the following orders:
 that the applicant workers and the Property Manager do not approach each other and that they do not attend the others’ business premises;  and
 that the employer establish and implement appropriate anti-bullying policies, procedures and training, including confirmation of appropriate future conduct and behaviour.

Apart from the serious health and safety issues that can arise for employees who are subjected to bullying in the workplace these issue also erode the culture and productivity of a workplace and consume immeasurable time, effort and costs for all parties involved.  As discussed in our earlier blog, ensuring the workplace is covered by clear, non-negotiable policies which cover workplace behaviour is one of the steps that can be taken in eradicating bullying and developing a positive workplace culture. But is doesn’t stop there. Ensuring that all employees are educated on the contents of the policy and received ongoing training and understand the consequences of breaches of the policies is an ongoing exercise that businesses must take to address the issue of workplace bullying and create and maintain positive workplaces. 

If you need help with either implementing or refining:

  1. Clear and consistent recruitment processes;
  2. Comprehensive induction and on-boarding programs; or
  3. Carefully considered and well crafted employment contracts and workplace policies

Then contact our expert workplace law team today.