Changes to the Fair Work Act 2009(cwth) that came into force on 01 Jan 2014 mean that a worker who believes that they are being bullied at work, can apply to the Fair Work Commission for an order to stop bullying.
Under the Act, a worker is being bullied when a person or a group of people repeatedly behave unreasonably towards a worker or a group of workers AND the behaviour creates a risk to health and safety.
Examples of bullying behaviour
The Fair Work Commission website lists the following as examples of what bullying behaviour may be.
Bullying behaviour may involve, for example, any of the following types of behaviour:
- aggressive or intimidating conduct
- belittling or humiliating comments
- spreading malicious rumours
- teasing, practical jokes or ‘initiation ceremonies’
- exclusion from work-related events
- unreasonable work expectations, including too much or too little work, or work below or beyond a worker’s skill level
- displaying offensive material
- pressure to behave in an inappropriate manner.
It is important to note, that for the behaviour to be classed as bullying, the behaviour must be repeated and unreasonable and must create a risk to health and safety.
A worker cannot apply for an order to stop bullying if they are subject to reasonable management actions that are carried out in a reasonable manner.
Reasonable Management Actions
Reasonable management actions may include:
- performance management processes
- disciplinary action for misconduct
- informing a worker about unsatisfactory work performance or inappropriate work behaviour
- asking a worker to perform reasonable duties in keeping with their job
- maintaining reasonable workplace goals and standards.
However, these actions must be conducted in a reasonable manner. If they are not, they could still be bullying.
Who is Covered?
To be eligible to apply for an order to stop bullying, the applicant must be covered by the national anti-bullying laws, and meet the definition of a worker.
Those who are ineligible to apply my include:
- sole traders or partnerships
- some state government departments and (non-corporate) state public sector agencies
- some local governments, provided they are not trading or financial corporations
- corporations without significant trading or financial activities.
Members of the Defence force are not covered by these laws.
Protecting yourself from bullying complaints
By far the easiest way to protect your business and yourself from an application for an order to stop workplace bullying is to ensure that you have a clear and easy to understand policy on the prevention of bullying and harassment, along with a suitable process for the reporting and investigation of bullying complaints.
Whilst it may seem bureaucratic, I would even suggest that you put you staff through a training session on the policy once it is implemented, and at a minimum, on an annual basis.
[GARD]It is also worthwhile noting that an application for an order to stop workplace bullying can be lodged for bully behaviour that occurred prior to 01 January 2014.