The New Bullying Provisions under the Fair Work Act

As of 1 January 2014, there are specific provisions in the Fair Work Actfor a worker who has been bullied at work to apply to the Fair Work Commission (“the FWC”) for an order to stop the bullying.

The provisions apply to “workers”, which includes employees, contractors, sub-contractors, outworkers, apprentices, trainees, students gaining work experience and volunteers. They must be “at work” for an employer who is covered by the Fair Work Act (being the vast majority of employers).

A worker is bullied at work if an individual or group of individuals repeatedly behave unreasonably towards the worker, and that behaviour creates a risk to health and safety. It specifically does not apply to reasonable management action carried out in a reasonable manner.

If an application is made by a worker to the FWC, the FWC must start to deal with that application within 14 days. That does not mean that the application itself must be resolved within this time – merely that the FWC must start to inform itself of the matter within that period.

If the FWC is satisfied that the worker has been bullied at work and there is a risk that the worker will continue to be bullied at work, it may make any order it considers appropriate (other than an order requiring payment of a pecuniary amount) to prevent the worker from being bullied at work.

If the person to whom such an order applies contravenes a term of that order, the person who has contravened it may be subject to a penalty and also liable to pay compensation to the worker for loss suffered (including for ‘hurt and humiliation’).

Some important points to take from these new provisions are:

  • To be bullying, it must be “repeated” – one incident is not enough;
  • The focus is not on compensating the worker for past bullying but stopping them being bullied in the future. Irrespective of the seriousness of the bullying, if there is no risk of it happening in the future (for example, because the bully has since left), no order will be made;
  • The FWC cannot order payment of a pecuniary amount – hopefully this will avoid spurious claims being made in an attempt to obtain a payout.
  • There is no right to appeal from an order.
  • The orders will not necessarily be directed to the employer business itself, but may be directed at individual employees (at any level) or groups of employees.

To date, victims of bullying have relied upon causes of action that are compensatory in nature – for example, workers compensation claims, breaches of occupational health and safety legislation, discrimination claims and the criminal process. The aim of the new provisions is to stop the bullying at an early stage and thus, hopefully, avoid the damage being caused in the first place. The new provisions do not however replace any of the existing causes of action – if damage is suffered, the victim can seek compensation for that damage just as before.

The efficacy of the provisions in a particular case is likely to depend heavily on the individuals involved and the particular FWC representative who deals with the complaint.

It goes without saying that bullying should be avoided wherever possible and, if it exists, stamped out.  Employers should ensure they have clear bullying policies in place and that allegations of bullying are dealt with as quickly, fairly and effectively as possible. The new provisions should only be necessary where the employer’s internal processes have failed.

For more information on this update or any other employment law matters please contact us on (08) 9321 3755.

The information published on this website is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.