The amendments represent a new approach to the problem of workplace bullying which is usually handled through workers’ compensation. The purpose of the new rules is clear and simple: they allow a person who is bullied within the meaning of the Fair Work Act to apply to the Fair Work Commission (FWC) for an order to be made to stop the bullying.
Under the new provisions, a person is “bullied” if he or she is subjected to repeated behaviour in the workplace by an individual or a group of individuals that creates a risk to health or safety (Fair Work Act s 789FD). This does not apply to “reasonable management action” carried out in a “reasonable manner”.
“This is not a compensation jurisdiction…[it] is not an avenue to provide compensation to those who have been subjected to bullying; and nor is it about penalising employers. It is directed at preventing workers from being bullied at work,” said FWC President Justice Iain Ross.
If the FWC is satisfied that the person has been bullied within the meaning of the Act, it can make whatever orders it considers necessary to prevent the bullying (s 789FF). According to the amendment’s Mandatory Explanatory Memorandum (para. 121) orders might require any of the following:
- an individual or group to stop the bullying behaviour;
- an employer’s regular monitoring of behaviour; and
- compliance with or review of an employer’s workplace bullying policy; or provision to workers of information, support and training.
Importantly, the new rules only apply to workers likely to be bullied again. This excludes individuals who are no longer subjected to bullying or those who have left their workplace.
Although there has been some criticism of the amendments, RLC believes that the new provisions are a step in the right direction to decrease instances of workplace bullying. Josh Bornstein, the head of employment law at Maurice Blackburn lawyers, told the ABC, “One of the difficulties we’ve had in the area of workplace bullying for many years is that occupational health and safety authorities like WorkSafe have been very slow to react to workplace bullying and in my view quite ineffective.” The amendments attempt to remedy this inefficiency by requiring the FWC to start dealing with an application within 14 days after it is made (s 789FE).
In addition, if a person contravenes an order against them to cease bullying behaviour, the FWC may impose a fine of up to $10,200 dollars on individuals (per breach) or $51,000 on organisations (per breach) (s 539).
