The Fair Work Amendment Bill 2013 has been passed by Parliament and given Royal Assent. The anti-bullying provisions will commence on 1 January 2014.
Amongst other things, the Act enables a worker who reasonably believes that they have been bullied at work to apply to the Fair Work Commission for an order to prevent the worker being bullied at work.
A worker is an individual who performs work in any capacity, including as an employee, a contractor, a subcontractor, an outworker, an apprentice, a trainee, a student gaining work experience or a volunteer.
A worker is bullied at work if:
(a) while the worker is at work in a constitutionally-covered business:
(i) an individual; or
(ii) a group of individuals;
repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member; and
(b) that behaviour creates a risk to health and safety.
It therefore applies to workplaces run by companies but not unincorporated businesses and partnerships.
Bullying include behaviour that is victimising, intimidating, humiliating or threatening. A worker will not be bullied at work if the action is reasonable management action carried out in a reasonable manner.
The FWC is required to start dealing with a matter within 14 days after the application is made.
If the FWC is satisfied that the worker has been bullied, and there is a risk that the worker will continue to be bullied, it may make an order to prevent the worker being bullied at work. The power of the FWC to make an order does not extend to ordering reinstatement of a person or the payment of compensation or a pecuniary amount.
But a pecuniary penalty can be given for a breach of that order.
The FWC may refer a matter to a work health and safety (WHS) regulator where it considers this necessary and appropriate.
Employers should have a policy and procedures in place to respond to bullying claims.
Draft workplace bullying policy
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Posted 1st July 2013
by David Jacobson
in Risk Management, Workplace