Navigation

New Bullying Laws

New Bullying Laws

Our latest article in Spa Australasia magazine - November 2013.

Download article

Or read online:

Important changes have been made to the Fair Work Act 2009 regarding workplace bullying, which will take effect from 1 January 2014. It's important you understand and prepare now to ensure your business is protected, David Bates explains.

THE FAIR WORK Amendment Act 2013 changes the handling of bullying related claims. Presently, these claims are generally managed under state and territory workplace health and safety laws. This is largely because the definition of workplace bullying specifically refers to WHS: "Repeated unreasonable behaviour directed towards a worker or group of workers that creates a risk to health and safety."

The new laws implemented by the Commonwealth Government will, for the first time, allow most workers to lodge their bullying-related complaints directly with the national workplace relations tribunal, the Fair Work Commission (formerly known as Fair Work Australia).

From 2014, the Commission expects to handle approximately 3,500 bullying claims each year. These new laws don't apply to sole traders and partnerships (for now) but for businesses that are covered by the changes, the laws will extend to volunteers, contractors, trainees and anyone else engaged in the business.

From 2014, The commission will be required to begin dealing with applications within 14 days. It's possible that a letter from the commission advising that a case has been lodged against you may be the first you hear about the allegations.

So, you may have little time to prepare your response and arrange appropriate representation. This is serious news for employers, especially those running small businesses with limited resources.

WHAT IS BULLYING?

The most important thing you can do to protect your business from expensive and time-consuming claims is to clearly and confidently understand bullying. The new laws make it clear that 'reasonable action' taken in a 'reasonable manner' by employersis not bullying, and that the following actions taken by managers are perfectly acceptable:

• appropriately allocating work to an employee
• establishing performance goals and professional standards
• requiring work to be completed by a reasonable deadline
• rostering employees based on business needs
• not promoting an employee for valid reasons
• undertaking performance reviews and advising an employee they are underperforming
• taking disciplinary action
• restructuring your workplace

Repeated instances of the following conduct can amount to bullying:

• unjustified criticism of an employee
• deliberately excluding an employee without valid reasons
• denying or withholding access to important information
• setting unreasonable tasks
• deliberately inconveniencing an employee
• swearing at an employee
• spreading rumours

There are of course many more examples of conduct that is and isn't bullying, but these are the most common types of behaviour in lodged claims.

It's also worth noting that bullying isn't limited to those in positions of power. There are cases of workplace bullying where the victim is the employer. In these cases, the employee often has an awareness of workplace rights, or they may possess knowledge that is important to the business, and the employee uses the knowledge to protect themselves from disciplinary action. Similarly, bullying may occur between colleagues who are otherwise considered 'equals' in the company's hierarchy. Regardless of who is involved, all bullying is unacceptable and you should have absolutely no hesitation in stopping it.

Steps You Should Take Now

Apart from knowing what conduct is acceptable, take these steps to protect yourself from bullying-related complaints:

• Implement an anti-bullying policy in your workplace, and ensure there are processes in place for promptly investigating complaints.
• Educate your staff about workplace bullying, and remind them that bullying in any form is not acceptable.
• Take disciplinary action against any employee found to be engaging in bullying behaviour. In serious cases, this may require termination of their employment.
• Take disciplinary action against any employee who lodges a false claim of bullying-these are just as unacceptable as bullying itself.

David Bates is the managing director of Workforce Guardian, David is an experienced employment relations professional and leads a team who specialise in helping businesses achieve and maintain compliance with modern awards and  the Fair Work Act 2009 (including the National Employment Standards). WWW.WORKFORCEGUARDIAN.COM.AU, 1300 659 563

Published: Friday, November, 2013