Amendments to the Fair Work Act – Bullied at Work Provisions
The amendments to the Fair Work Act 2009 (FW Act) regarding Workers Bullied at Work Provisions come into effect from 1 January 2014.
Making an Application – under the new Part 6-4B (“workers bullied at work”)
- The new provisions allow a worker who reasonably believes that he or she has been bullied at work to apply to the Fair Work Commission (FWC) for an order to stop the bullying.
- The person making the application must be a “worker”.
- Definition of a “worker” includes an employee, contractor, sub-contractor, out worker, apprentice, trainee, student gaining work experience, or a volunteer.
- There must be risk to the worker that they will be continued to be bullied at work by the individual or group.
- The worker must be employed in a “constitutionally-covered business”. The employer mustbe a constitutional corporation, the Commonwealth Government or Authority, or be incorporated or operating in a Territory.
- FWC must start to deal with the application within 14 days.
- FWC may hold a conference or hearing with the parties, orstart to inform itself about the matter.
- FWC may refer the matter to awork health & safety regulator where it considers this necessary and appropriate.
Definition of “bullied” in the FWAct
Repeated behaviour
•Needs to occur more than once.
•Refers to the persistent nature of the behaviour and can refer to a range of behaviour over time.
Unreasonable behaviour
•Broad notion.
•Behaviour that a reasonable person, having regard to the circumstances would regard as unreasonable.
•Includes, but is not limited to, victimising, humiliating, intimidating and threating.
Risk to health and safety
•Consistent with workplace health and safety risks.
Definition of “bullied”in the FW Act excludes reasonable management action
The definition of “bullied”in the FW Actexcludes “reasonable management action carried out in a reasonable manner.”
FWCwill not find that a worker has been bulliedwhere the employer has conducted “reasonable management action carried outin a reasonable manner”.
•It is not bullying if the employer has taken reasonable management action and followed the proper process for disciplining or counselling an employee for legitimate reasons, e.g. responding to poor work performance, taking disciplinary action or giving direct instructions to their employees.
•It is reasonable for employers to allocate work in a fair and reasonable manner.
•It is reasonable for managers and supervisors to give fair and constructive feedback on a worker’s performance.
These actions are not bullying if carried out in a reasonable manner.
Orders that FWC can make to prevent workplacebullying
FWC can make any order it considers appropriate to prevent aworker from being bullied at work. Orders are not confined to the worker’s employer, but could also apply to co-workers and visitors.
Examples of orders:
•Requiring the individual or group to stop the bullying behaviour.
•Regular monitoring of conduct by an employer.
•Requiring compliance with the workplace bullying process.
•Requiring the workplace to implement or review aworkplace bullying policy.
•Directing the employer to provide extra support and training to workers.
There is no provision for compensation.
An individual or a group whom the order is made against must not contravene that order, and penalties may apply.
Consideration by FWC when making orders
Prior to making any orders, FWC will need to take the following into account (to the extent that FWC is aware):
a)any final or interim outcomes arising out of an investigation into the matter that is being, or has been, undertaken by another person or body;
b)any procedures available to the worker to resolve grievances or disputes;
c)any final or interim outcomes out of any procedure available to the worker to resolve the grievances or disputes; and
d)any other matters that FWC considers relevant.
Unions NSW Dignity and Respect in the Workplace Charter
Unions NSW hasdeveloped a Dignity and Respect in the Workplace Charter (Charter).
TheCharter defines what is reasonable and unreasonable behaviour and the steps that employers and employees can take to prevent bullying behaviour in their workplace.
updatedOctober 2013