What are the changes?
The proposed changes are part of the Federal Government's response to a federal parliamentary committee's (Committee) report on workplace bullying which made various recommendations in October 2012.
The Committee recommended that workers who are targeted by workplace bullying be given the specific right to seek redress through an adjudicative process. The Federal Government has pledged to do so by providing employees with a right of recourse to the FWC.
At this stage, the Federal Government intends to amend the Fair Work Act 2009 (Cth) (Act) to:
- define workplace bullying, harassment or victimisation as "repeated, unreasonable behaviours directed towards a worker or a group of workers that creates a risk to health and safety". At the same time, it will clarify that bullying does not include reasonable management practices, including performance management conducted in a reasonable manner. This definition was originally adopted by some state work health and safety regulators around 10 years ago. The reasonable management practices exclusion is also consistent with the exclusions to compensable stress claims contained in some state and territory workers compensation legislation;
- allow a worker affected by workplace bullying (as defined) to apply to the FWC to deal with the complaint;
- require the FWC to deal with such applications as a matter of priority, including by listing the matter for consideration within 14 days;
- enable the FWC, should it be satisfied that a person has been bullied in the workplace, to make orders it considers appropriate to remedy or prevent the bullying from recurring. These orders may include requiring the employer to do, or refrain from doing, certain things, orders relating to the employee or other employees at the workplace, and/or the publishing of the orders to assist in preventing further bullying at the workplace;
- attach a civil penalty offence of up to $33,000 for failure by an employer to comply with an order of the FWC; and
- permit the FWC, if it considers it necessary, to refer a bullying complaint to a state or territory-based work health and safety regulator for investigation and appropriate action under the regulator's compliance and enforcement policy.
The Federal Government has not given any indication about whether workers will have to file this type of application with the FWC within a defined time period, what process the FWC will be required to undertake to "deal" with an application, or whether an employer that is subject to a bullying complaint will be obliged to participate in such a process.
In response to other recommendations made by the Committee, the Federal Government, amongst other things:
- will encourage Safe Work Australia (SWA) to finalise the draft Code of Practice: Managing the Risk of Workplace Bullying and work to have it implemented in each state and territory;
- has asked SWA to develop advice materials for employers on preventing and responding to bullying allegations, and to determine how an accredited training program on workplace bullying can be developed;
- has asked Comcare to implement a nationally accredited training program for all work health and safety inspectors and to develop a uniform national approach to compliance and enforcement policy, both in liaison with state and territory work health and safety regulators; and
- will encourage state and territory governments to collaborate to ensure that their criminal laws applicable to serious cases of bullying are consistent and strong.
How does this differ to existing bullying laws?
Laws in each state and territory currently give work health and safety regulators the power to investigate serious bullying allegations and, if necessary, to prosecute perpetrators. Although a worker can alert a regulator to allegations of bullying, a worker cannot themself initiate such a prosecution.
A worker may also, for example, bring a claim under the Act's "general protections" or under federal or state anti-discrimination laws if the allegation of bullying involves discrimination on an unlawful ground and/or prohibited harassment.
When will the changes be introduced?
The Federal Government intends to introduce legislation this month, with the aim of making the changes effective from 1 July 2013.
What do these proposed changes mean for employers?
If implemented, these changes will mean that employers face the risk of being subject to a new type of workplace claim.
The changes may also provide disgruntled employees with another avenue to pursue speculative bullying claims against their employers, possibly without seeking to have allegations dealt with through their employer's internal bullying policies and procedures.
Concerns have been expressed by some employer organisations that the proposed new cause of action will mix health and safety issues with industrial relations issues and that these are better kept separate.
The full impact of these proposed changes on employers is difficult to predict at this stage. Much of the detail is still to be released. The Federal Government is undertaking consultation about the details of the proposed changes prior to releasing the draft legislation.
At the very least, employers can take from this announcement that the recently renewed national focus on workplace bullying by governments and relevant authorities will soon begin to take effect, including through this legislation.
In that context, employers should ensure they keep up-to-date with the progress of these proposals. It is a good opportunity for employers to re-examine their internal practices and policies relating to bullying to consider whether any changes need to be made to minimise risks in light of the proposed new legislative framework. Contact your local Hunt & Hunt office below should you need advice about your workplace bullying practices and policies.
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