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About the New Anti-Bullying Laws

About the New Anti-Bullying Laws

5 February 2014

Employees who believe they are being bullied at work are now able to apply to the Fair Work Commission to have the harassment stopped.

New workplace bullying laws came into effect on 1 January 2014, as part of a number of amendments to the Fair Work Act (2009) that were passed by Parliament in 2012 and 2013.

The new laws affect the way allegations of workplace bullying are dealt with and these changes have significant implications for businesses.

Workers who allege bullying will now be able to lodge an order with the Fair Work Commission (FWC) to compel their employer to have the bullying stopped. The Commission will have a 14 day time-frame to initiate investigations into specific complaints. 

Whilst the FWC will not have powers to award compensation, there will nevertheless be increased pressure and onus on businesses to be proactive about preventing workplace bullying and to promptly deal with any complaints in order to avoid intervention by the Commission. 

If the FWC finds that bullying has occurred the business must take reasonable steps to address this and, if the bullying could potentially cause a risk to the safety and health of the employee, the business could be liable for costly financial penalties if the Commission refers the matter to the Work Health Safety (WHS) Regulator. 

Business groups say the Commission's new broad powers could be problematic, with issues which should be dealt with on a personal or human resources level being elevated to the level of an industrial relations tribunal.

What constitutes bullying?

Under the Fair Work Amendment Act bullying happens when: 

  • An individual or group repeatedly behaves unreasonably towards a worker or group, and
  • The behaviour creates a risk to health and safety.

Bullying doesn’t include: 

  • One off instances of insensitivity or rudeness, or
  • Reasonable management activities carried out in a reasonable manner. 

Issues of ambiguity in the new laws have however been raised particularly in regard to what conduct will constitute bullying and how far the provisions extend. It will likely fall to the Commission to decide on a case-by-case basis. 

Ways to protect your staff and business

  • Ensure your business has systems and training in place to manage bullying claims.
  • Investigate instances of workplace bullying in a timely and fair manner using an investigation process that will stand up to scrutiny by external bodies.
  • Implement anti-bullying policies in your workplace or make amendments to harassment and bullying policies to send a strong message that bullying is not tolerated.
  • Ensure all staff members have been trained in appropriate workplace behaviour.
  • Have a complaints handling procedure that staff trust and have confidence in to reduce the chance of intervention by a third party. 

Further information can be found on the Fair Work Australia website at www.fwc.gov.au/documents/antibullying/Guide_antibullying.pd or, contact Gabrielle McFarland, Boyce HR Manager on 02 6452 3344 or email gmcfarland@boyceca.com.

Sources: www.australianbusiness.com.au/lawyers/new-anti-bullying-laws; www.hhr.com.au/news/new-workplace-bullying-legislation; www.fwc.gov.au.

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