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Many clients assume that laws currently exist in NSW and nationally which specifically prohibit workplace bullying.  The truth is there has never been national or NSW legislation that deals directly with bullying or creates clear rights for victims of bullying.

Until now, employees who believe they have been bullied at work have relied on a general right to workplace safety as set out in work health and safety legislation or, where appropriate, they have had to rely on anti-discrimination or workers compensation legislation.  Some claims have been made in reliance upon the general protections in the Fair Work Act 2009 (Cth) (Act) or more generally, for  breach of various implied contractual duties owed by employers to their employees.

Things are about to change.

Earlier this year the Federal Government passed amendments to the Act to create a new right for workers to seek assistance from the Fair Work Commission (FWC) to stop workplace bullying.

These new laws will commence from 1 January 2014.

In addition, as part of the ongoing harmonisation of work health and safety laws, Safe Work Australia has recently released the second draft of its model code on bullying entitled Bullying Code of Practice (Code) and a related workers guide.  Although the Code is currently in draft form, once finalised it will apply in the various states and territories that have adopted the new harmonised national Work Health and Safety Act 2011 (WHS Act) (currently this includes all states and territories except Victoria and Western Australia).

The Act will create certain new rights for workers who have been bullied (as discussed below) whereas the Code is a best practice guide for employers and others who have obligations under the new WHS Act and it will be admissible in Court as evidence of the relevant standards.

What is Workplace Bullying?

For the first time the changes to the Act and the new Code will define “workplace bullying”.

Importantly, each document uses basically the same definition although the Code provides more detail and gives examples.

The Act states:

“A worker is bullied at work if:

  1. while the worker is at work….
    1. an individual; or
    2. a group of individuals;

      repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member; and
  2. that behaviour creates a risk to health and safety.”

As the Act refers to “repeated behaviour”, it is clear that a single act of unreasonable behaviour would not be covered.

The Code expressly states that repeated behaviour “refers to the persistent nature of the behaviour and can involve a range of behaviours over time.”

The Code gives some examples of bullying and these include:

  • abusive, insulting or offensive language or comments
  • unjustified criticism or complaints
  • continuously and deliberately excluding someone from workplace activities
  • withholding information that is vital for effective work performance
  • setting unreasonable timelines or constantly changing deadlines
  • setting tasks that are unreasonably below or beyond a person’s skill level
  • denying access to information, supervision, consultation or resources such that it has a detriment to the worker
  • spreading misinformation or malicious rumours
  • changing work arrangements, such as rosters and leave, to deliberately inconvenience a particular worker or workers
  • excessive scrutiny at work.

Importantly, both the Act and the Code specifically state that bullying does not include “reasonable management action carried out in a reasonable manner.” This is a critical exclusion because it is often the case that bullying complaints arise in the context of performance reviews, counselling and staff management practices.  Provided such activities are “reasonable”, they will fall outside the definition of workplace bullying.

Who is covered by the Act and the Code?

The Act and the Code cover more than just ordinary employees and employers.

The Act adopts the definition of “workers” as defined in the WHS Act.  This definition extends beyond ordinary employees to also cover contractors, subcontractors, outworkers, apprentices, trainees, students gaining work experience and volunteers.  This same broad definition is used in the Code.

Similarly, rather than referring to “employers”, the Act and the Code adopt the definition used in the WHS Act which covers all persons conducting “a business or undertaking”.

What rights do workers have under the Act?

The Act creates a new right for workers to apply to the FWC to seek redress if they believe they are victims of workplace bullying.  The FWC has just 14 days in which to start to deal with an application.  It is unclear what procedural steps will occur but presumably within the 14 day period, the FWC will make arrangements for a conference between the relevant parties.

If the FWC is satisfied that:

  1. the worker has been bullied at work; and
  2. there is a risk that the worker will continue to be bullied

then the FWC may make any order that it considers appropriate to stop that behaviour from continuing.

While the Act gives the FWC broad scope as to the type of order it may make, it is important to note that the FWC cannot make an order requiring payment of a pecuniary amount to the worker.

Parties must not contravene the orders made by the FWC.

At this stage the Act is silent on a number of critical issues.  For example, it is not clear whether the employer will be notified when an employee makes a complaint about another employee.   Also, the Act provides no guidance on whether or not the parties can be represented or how legal costs will be dealt with including in respect of vexations or unfounded complaints.  Currently there is no requirement for the employee to first exhaust internal grievance procedures with the employer before taking action.  It is hoped that these procedural matters will be resolved prior to 1 January 2014.

Changes to the Act foreshadowed by Coalition

The Coalition has announced that if elected it will further amend the Act as follows:

  • Introduce a requirement for workers to first seek help and “impartial advice” from an independent regulatory agency before making an application to the FWC.   Presumably this requires workers to first contact the Fair Work Ombudsman; and
  • Introduce a right for workers and employers to bring complaints against union officials.

What rights will the Code create?

The WHS Act creates an absolute duty for “persons conducting a business or undertaking” to take all reasonable and practical steps to ensure the health and safety of workers and certain others.  It also creates a duty to consult with various parties in respect to health and safety.  The codes of practice that are being developed as part of the harmonisation of WHS provide practical guides to assist employers (and others) to achieve the standards of health, safety and welfare required under the WHS Act.   A breach of the WHS Act can result in prosecution by the relevant authorities.

To have legal effect in a jurisdiction a model code of practice must be approved as a code of practice in that jurisdiction.  An approved code of practice will then apply to anyone who has a duty of care in the circumstances described in the code. In other words, once the Code has been finalised and approved it will apply to persons conducting a business or undertaking with responsibilities for work health and safety under the WHS Act.  As stated above, approved codes of practice are admissible in court proceedings.

In practical terms, if a report is made of bullying to the relevant authority, that authority may have regard to the Code in determining if the statutory obligation of the relevant employer to provide a safe work environment for its workers has been breached.  Accordingly, it is critical that (once finalised) employers understand the Code and make changes to their internal policies and procedures to comply with the Code.

What should Employers do?

Employers must take steps now to prepare for the changes to the Act and the introduction of the Code.  Employers should:

  • seek advice on the applicability of the Code and Act and the types of duties which arise for parties particularly under WHS Act;
  • review existing policies and procedures on bullying and compare those policies and procedures to the Code;
  • consider the introduction of a stand-alone bullying policy and deal with social media as appropriate in that policy;
  • create clear, accessible and compliant procedures for addressing bullying;
  • consider further and regular training for stakeholders and management;
  • introduce regular training of all staff in accordance with the expectations outlined in the Code;
  • review record keeping systems both in terms of policy and procedure updates, staff training and any complaints; and
  • develop appropriate strategies for managing complaints including to the FWC or work health and safety authority.

Please advise if you would like assistance with any of the above matters.  Our team is able to audit your existing policies and procedures and provide appropriate staff training on all of the matters outlined in this article.

For more information contact l.kyriacou@pigott.com.au

This article is intended to provide general information in summary form on a legal topic, current at the time of publication.  The contents do not constitute legal advice and should not be relied on as such. Formal legal advice should be sought in specific circumstances.