Posted 30/01/2014 by Jaan Murphy
From 1 January 2014, the Fair Work Commission (FWC) has jurisdiction to hear complaints from workers covered by the Fair Work Act 2009 (FWA) who allege they are victims of workplace bullying.
Background
The reforms related to bullying introduced by the Fair Work Amendment Act 2013 (2013 reforms) were introduced in response to the House Standing Committee on Education and Employment report on workplace bullying, and included providing the FWC with jurisdiction to hear workplace bullying complaints.
Prior to the 2013 reforms, the main remedies for workplace bullying centred on Work Health and Safety (WHS) and workers compensation legislation. Industrial relations, anti-discrimination and criminal legislation had only peripheral application, in certain circumstances.
The table below highlights (in simplified form) some of the potential remedies available to victims of workplace bullying prior to the 2013 reforms.
As a result of the 2013 reforms, it is arguable that the main remedies available for victims of workplace bullying are no longer primarily centred on WHS and workers compensation legislation, and instead are now distributed between the Fair Work Act 2009 (FWA) and state and territory WHS legislation (which was largely harmonised in Australia between 2012 and 2013).
The table below highlights (in simplified form) the range of potential remedies now available to victims of workplace bullying.
What is workplace bullying?
Workplace bullying is defined in section 789FD(1) of the FWA as where an individual or group of individuals:
- repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member and
- that behaviour creates a risk to health and safety.
This definition reflects that found in the Guide for Preventing and Responding to Workplace Bullying and the Workplace Bullying – A worker’s guide issued by Safe Work Australia (together, the Guides). In November 2013, Safe Work Australia announced that the proposed draft code of practice on workplace bullying would be finalised and released in the form of the Guides.
Importantly, the FWA and Guides exclude ‘reasonable management action’ (for example, performance reviews or disciplinary processes) carried out in a reasonable manner from the definition of bullying.
Once approved by Ministers on the Select Council for Workplace Relations and adopted in an Australian WHS jurisdiction, a WHS Code of Practice can be referred to by courts and tribunals as evidence of whether or not the duty to ensure ‘so far as is reasonably practicable’ the health and safety of employees while they are at work, as imposed by a relevant WHS law, has been complied with and hence is of significant legal importance. Whilst the Guides will not have the same legal weight, courts have displayed a willingness to consider similar materials. As a result, the Guides will remain important reference materials in determining if the duty to ensure employees health and safety has been met.
When can the FWC hear a bullying claim?
Section 789FC of the FWA allows a worker who ‘reasonably believes’ they have been bullied at work to apply to the FWC for an order to stop the bullying. Most WHS regulators generally require any internal company investigations or complaint handling processes to have been completed before investigating a matter.
In contrast, the FWC does not impose any similar restrictions.
When can the FWC make orders in relation to a bullying claim?
Section 789FF(1) of the FWA provides that the FWC can only make an order in relation to a bullying claim where it is satisfied that:
- the worker has been bullied at work and
- that there is a risk that the worker will continue to be bullied at work.
As a result (as noted in its anti-bullying case management model) the FWC cannot deal with an application where the bullying is not continuing (e.g. the worker has resigned or been dismissed).
However, it may be possible for the worker to seek other forms of redress where the conduct underpinning the bullying breaches other parts of the FWA (e.g. unfair dismissal, general protections or unlawful termination).
What orders can the FWC make? Can a bullied worker receive monetary compensation?
Section 789FF(1) makes it clear that a worker who makes an anti-bullying application to the FWC is not entitled to compensation. Instead, the FWC can make ‘any order it considers appropriate’ to prevent the workplace bullying. Examples of orders include:
- requiring individuals to stop the behaviour
- for an employer to monitor behaviour and
- for a person to comply with the employer's bullying policy.
Regulatory duplication, or a one-stop anti-bullying shop?
As section 655 of the FWA allows the FWC to disclosure of information to a WHS regulator, it is possible that the FWC will turn into a ‘one-stop shop’ whereby:
- workers bring bullying complaints
- protective orders are made (until the WHS regulator has dealt with the matter), and
- the matter is referred to the appropriate WHS regulator.
Alternatively, one commentator has suggested that a WHS regulator could, in prosecutions for breaches of WHS laws, use the fact the FWC made an order as evidence that bullying has occurred (and thus comprises a risk to health and safety). However, some commentators have suggested that the 2013 reforms will duplicate the efforts of state governments in regards to workplace bullying, will lead to a flood of unmeritorious complaints.