With the workplace bullying provisions of the Fair Work Act having now been in place for over 12 months, it’s timely to reflect on the changes, how they are working in practice and the associated costs and responsibilities.
Under the legislation:
- bullying at work is deemed to occur when “an individual or group repeatedly behaves unreasonably towards a worker or group AND the behaviour creates a risk to health and safety”. Bullying does not include one-off instances of insensitivity or rudeness, or reasonable management activities carried out in a reasonable manner
- a worker who believes that they have been bullied, and anticipates that the bullying will continue, can apply to the Fair Work Commission for an order to stop the bullying
- “Worker” has a broad definition and includes, for example, employees, contractors and subcontractors, an employee of a labour hire company, apprentices, trainees, students gaining work experience and volunteers
- the Fair Work Commission is required to start to deal with an application for an order to stop the bullying within 14 days of it being received
- courts can impose significant penalties on individuals and/or businesses that fail to comply with an order to stop the bullying
- the Commission can also refer the matter to Work Health and Safety regulators which could ultimately result in the imposition of fines or a prosecution for a breach of WHS laws.
While the Fair Work provisions apply specifically to constitutionally-covered businesses, work health and safety legislation continues to be relevant and applies to all businesses, so it is strongly recommended that all businesses/organisations have a clear policy in place, train staff and promptly and appropriately address any issues arising.
Though the number of bullying complaints appear to be increasing (indeed, we have noticed a sharp increase in employers accessing our support to investigate and/or help manage bullying complaints), it has come as a surprise to many that the initial 6 months operation of the new legislation saw only 343 applications being made for orders to stop the bullying. Of these, almost 50% were withdrawn before the start of proceedings. All but one of those remaining was subsequently withdrawn before the Commission was called upon to make a determination. The single remaining case was revoked once it became apparent that the action the employee had taken had effectively eliminated the bullying behaviour that gave rise to the complaint.
We can’t be absolutely sure why employer group’s worst fears of hundreds of applications being made to the Fair Work Commission have not yet been realised, despite the evidence that workplace bullying continues to be quite prevalent. It could be that bullied workers are simply not aware of the options available to them, or it could be that businesses are better managing complaints internally which curtails the likelihood of a formal external complaint (which of course would be great news!). Alternately, it could be that workers don’t want to risk “rocking the boat” by making a formal external complaint and they choose instead to just “put up with it” or move on.
That said, the Commission is beginning to show its teeth, having recently made the first formal “stop bullying” order. The case involved two employees at a small real estate firm who were deemed to have been subjected to bullying and harassment by a property manager who, amongst other things, used inappropriate and aggressive language, physical intimidation and threats of violence, and acted to undermine the quality of their work. While the employer had taken some steps to address the problems the Commission ruled that the measures were not sufficient to stop further risk, and ordered the employer to establish and implement workplace anti-bullying policies, procedures and provide training to address the problematic culture within the workplace.
Costs and Responsibilities
Despite the apparent reluctance of bullied workers to formally apply to the Fair Work Commission for an order to stop the bullying, there can be no doubt that bullying continues to be a major problem in Australian workplaces. Apart from the social/human/community costs, there are considerable costs to business in terms of absenteeism and turnover, lost productivity, disruption and the cost of dealing with complaints and formal investigations etc… If you haven’t already done so, we strongly urge you to effectively manage the risks by ensuring that:
- your business has a clear and workplace bullying policy in place that is consistent with the legislation and effectively communicated
- all workers and managers are trained in preventing, recognising and addressing bullying behaviours
- any relevant concerns/complaints are addressed seriously, sensitively, promptly and in accordance with the policy of the business, and
- managers “set the tone” for the business, to ensure that the culture does not encourage or condone any sort of bullying behaviour.
Call us if you need further information or support, including in relation to the development of policies and procedures, staff training (online and in-person), grievance handling and conduct of independent investigations.