With recent legislative changes, those who believe that they have been bullied at work may now be able to get assistance from the Fair Work Commission.
Bullying in the workplace has long been recognised as a problem that can have serious and broad negative consequences. Now, with recent changes to the Fair Work Act that took effect on 1 January 2014, those who believe that they have been bullied can seek the assistance of the Fair Work Commission in appropriate cases.
For the purposes of the new laws, “bullying” is defined as having occurred if, while the worker is at work in a “constitutionally-covered business”, an individual, or group of individuals, repeatedly (i.e. more than once) behaves unreasonably towards the worker or a group of workers of which the worker is a member, and that behaviour creates a risk to health and safety.
Note, however, that “reasonable management action carried out in a reasonable manner” is excluded from the definition of “bullying” for the Act.
If a worker reasonably believes that he or she is being bullied at work, they can apply to the Fair Work Commission for an order to stop the bullying. If the Commission is satisfied that the worker has been bullied at work by an individual or group of individuals and there is a risk that the worker will continue to be bullied at work by the individual or group of individuals, the Commission can make an order.
A “worker” for the purposes of the legislation is an individual who performs work in any capacity, including as an employee, a contractor, a subcontractor, an outworker, an apprentice, a trainee, a student gaining work experience or a volunteer.
The Commission has a broad power to make any order it considers appropriate to prevent the bullying, other than to order payment of a pecuniary amount. Such orders can be made against employers, other workers or groups in the workplace.
While these changes only cover employees in a “constitutionally-covered business” such as a constitutional corporation or the Commonwealth, this does not mean that bullied employees outside this sphere (such as those employed by a partnership) have nowhere to turn. Workplace bullying may also be a breach of State occupational health and safety laws, or may contravene applicable anti-discrimination legislation.
Additionally, bullying in certain instances may constitute a constructive dismissal by the employer, which may also be actionable in the Fair Work Commission or the Western Australian Industrial Relations Commission. Detailed legal advice is essential for you to properly determine your rights.
For workers, the new laws provide a new avenue of help for those who are being subjected to inappropriate bullying behaviour in the workplace. Bullying can destroy lives, and everyone has the right to work in a safe workplace without undue harassment.
For employers, the challenges inherent in the new laws are obvious. Not only will employers need to carefully consider their performance and disciplinary procedures to ensure that management actions are reasonable and carried out in a reasonable manner, but they will also need to ensure that correct policies and procedures are in place to properly deal with bullying complaints by workers.
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