Specifically, it is proposed that the Fair Work Act will be amended to give the Fair Work Commission (the Commission) the power to deal with individual cases of workplace bullying during the course of employment engagement.
A worker affected by workplace bullying will be able to take the complaint to the Commission to be dealt with, and under the proposed provisions the Commission will:
• Be required to list the application for consideration within 14 days;
• Be able to refer the matter to the relevant State work health and safety authorities for further investigation;
• Have the power to make orders to remedy and prevent the bullying;
• Have the power to impose a civil penalty of up to $33,000 on employers for failure to comply with such an order.
Workplace Relations Minister, Bill Shorten has said the aim is to ensure that victims of workplace bullying have access to an independent umpire to resolve disputes more effectively and without delay.
He also said that recourse to the Commission was necessary as workplace bullying has become a national issue. It is also planned that the legislative amendments will include adopting the definition of ‘bullying’ recommended by the Committee to provide a nationalised standard consistent with the definition in Safe Work Australia's Draft Bullying Code of Practice which is also yet to be finalised.
“Bullying, harassment or victimisation means repeated, unreasonable behaviour directed towards a worker or a group of workers that creates a risk to health and safety.”
However there are issues that remain unclear under the new proposed provisions. It appears that an employee can only bring the complaint against the employer rather than the individual perpetrator.
It is also uncertain whether an employee needs to address the issue with their employer first before approaching the Commission and whether it is just employees or “workers” in the broader sense who will have access to this jurisdiction.
These ambiguities no doubt will cause confusion and angst for employers until they are finalised. For obvious reasons there are concerns among business that the new scheme will cause complexity, red tape and increase legal proceedings.
This is particularly troublesome for small businesses that may not have the resources or time to get caught up in more complex procedures, including in deciding what may often be mere workplace disputes rather than genuine bullying claims.
It is now more important than ever for all businesses to review their current practices. To ensure that employers meet their obligations under the new proposed provisions businesses are advised to:
• Review and update current Anti-bullying and harassment policies and grievance / complaint procedures;
• Clearly set out a process for handling complaints, investigations of bullying and harassment and conflict resolution;
• Educate all staff on unacceptable and acceptable behaviour, as distinct from what constitutes reasonable management action (to minimise unmeritorious claims) and what to do if they experience bullying or harassment; and
• Revise training for managers and supervisors on how to appropriately manage, investigate and resolve complaints of bullying and harassment.
For assistance in reviewing your bullying and harassment policies, call the Matthews Folbigg Lawyers Workplace Solutions team on 9806 7478.
