In an earlier article "New bullying laws coming into effect 1 January 2014" we referred to the impending new provisions in the Fair Work Amendment Act 2013 (the "Act") to address bullying and harassment in the workplace. These came into effect on 1 January 2014.
The new legislation provides that a worker who believes on a reasonable basis that he or she is being bullied, can apply to the Fair Work Commission ("FWC") for an order for the bullying activity to cease. The first two months of the legislation has seen only 66 applications (Australia wide) made to the FWC; substantially less than initially predicted. It is also interesting to note that the majority of applications have been made by workers claiming that they have been bullied or harassed by a supervisor or superior.
The severe impact of bullying was recognised in the Explanatory Memoranda for theFair Work Amendment Act 2013primarily on the employees' personal health including their ability to be productive and efficient both at work and at home and the impact on productivity of the workplace and morale generally.
What is the definition of bullying at work?
The Act defines that a worker is bullied at work if, while at work, an individual or group of individuals behave repeatedly in an unreasonable manner towards the worker or a group of workers. This behaviour must also create a risk to health and safety.
A defence includes "reasonable management action carried out in a reasonable manner".
Bullying and harassing behaviour is not necessarily outright aggressive behaviour. It can occur in many forms and often in a covert or passive aggressive manner. Once an application has been made, the FWC has 14 days in order to "start dealing with the application" which will usually mean collating and requesting information from both parties.
There are jurisdictional requirements that must be satisfied before an application can be made. For example a person seeking to make an application must be a worker within the meaning of the Act. A worker is defined broadly to include:
- an employee;
- a contractor;
- a subcontractor;
- an employee of a contractor or subcontractor;
- a labour hire company employee working in the employers business;
- an outworker
- an apprentice; or
- a trainee or student on work experience or a volunteer.
It remains to be seen how the FWC will interpret the finer aspects of this new legislation. Given its only recent inception, there is only a very limited number of FWC decisions for guidance. It would appear, at this point, that workers compensation legislation (rather than the anti-bullying legislation) has been the unfortunate avenue for many workers being bullied, but only once it has reached the point that the worker is suffering a medical disorder requiring medical assistance.
Of note however, is a recent decision on 6 March 2014, where the Full Bench handed down its first decision on the new legislation in relation to an application made for bullying and harassment which occurred prior to the commencement of the Act. The Applicant in this matter had been bullied from 2007 to May 2013. The employer argued that the FWC had no jurisdiction to make an order concerning bullying and harassment that had been occurring during the time period, prior to the introduction of the legalisation. The Full Bench held that this was incorrect and while the legislation does not operate retrospectively, the FWC does have jurisdiction to make an order that relates to bullying occurring prior to the commencement of the legislation.