By on April 16, 2014

New Rights For Workers

PHIL BREWIN, Director Workplace Relations Specialist for Nevett Ford Lawyers reports on the new Federal bullying laws under the Fair Work Act 2009.

FRoM 1 January, 2014 workers who believe they have been bullied at work have been able to apply to the Fair Work Commission for a stop bullying order to stop the bullying.

“Worker” includes not only an employee but a contractor, subcontractor, outworker, apprentice or trainee, work experience student or volunteer.

The definition of bullying is wide and includes either an individual or a group of individuals who have been subjected to repeated, unreasonable behaviour that creates a risk to health and safety.

The bullying needs to have occurred more than once.

Bullying excludes reasonable management action carried out in a reasonable manner.

The bullying has to occur at work but it is arguable that provided there is a connection with work bullying via social media including Facebook and LinkedIn and bullying at work related functions this would be included.

In Victoria, to apply for a stop bullying order the worker must be “at work” in a business that trades as a company.

Businesses that trade as partnerships or sole traders in Victoria are not subject to the new laws.

“At work” does not only mean physically at the workplace but can mean whilst engaged in work with the business or undertaking covered by the new laws.

Therefore a subcontractor engaged by a contractor could ask for a stop bullying order if he is subject to repeated behaviour off site and out of work hours during the course of his engagement with the contractor.

The types of activities that the Fair Work Commission (FWC) is likely to treat as bullying include repeated instances of aggressive and intimidating conduct, belittling or humiliating comments, victimisation, the spreading of malicious rumours, practical jokes or initiation rites, exclusion from work related events, pressure to behave in inappropriate ways or unreasonable work expectations, any of which may pose a risk to health and safety.

Although the laws commenced to operate only from 1 January 2014, the FWC has already decided that behaviour that occurred before that date can be relied upon to ask for a stop bullying order.

In making a stop bullying order the FWC cannot award compensation but this should not mean that the parties to an application could not negotiate a monetary settlement as part of any application before the FWC.

A breach of a stop bullying order allows action to be taken against the party, which breached the order for it to pay a pecuniary penalty.

The FWC must start to deal with an application within 14 days of it being made.

In the first month of operation the FWC received 44 applications and on 21 March, 2014 made its first formal orders to deal with a bullying situation.

There are no reasons for the decision but the orders made mean that two employees are to have as little to do with each other as possible in the future.

In deciding whether to make a stop bullying order, the FWC can take into account any other procedure available to the worker to resolve matters, the results from any investigation into any behaviour that has been complained about by someone other than the FWC and any other matters that it considers relevant.

The power that the Fair Work Act gives to the FWC to deal with bullying is a different approach from other laws, which either seek to punish perpetrators (under workplace health and safety legislation) or compensate victims for injuries arising from bullying (under workers compensation legislation).

Companies need to ensure that they have policies and procedures in place that effectively address workplace bullying so as to prevent incidents being referred to and determined by the FWC.

If you would like further information or advice about these new laws or other aspects of workplace relations laws please contact:

Philip Brewin
Accredited Workplace relations Specialist;
Greg Doran or Emma Pollett-Sutton
Telephone 03 9614 7111

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