Anti-bullying Jurisdiction for the Fair Work Commission

Commonwealth legislation passed earlier this year will introduce a new anti-bullying jurisdiction for the Fair Work Commission (“The Commission”).

From 1 January 2014 a worker who is subjected to bullying behaviour in the workplace will be able to apply directly to the Commission for an order to stop the bullying behaviour.

Upon receipt of an application, the Commission will start to deal with the application by taking steps such as:

• requesting information from, or making enquiries of, the parties involved;
• convening a conference or mediation between the parties.

In assessing an application, the Commission must determine whether the worker has been bullied at work and if there is a risk of the bullying behaviour occurring in the future.

What is “Bullying at Work”?

A worker will be found to have been bullied at work if an individual or a 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.

Importantly for employers, reasonable management action taken by employers or managers will not be considered bullying. Reasonable management action may include responding to poor performance of workers, taking necessary disciplinary action and directing and controlling the way in which work is carried out. If the Commission is satisfied that the application is valid, it may make an order it considers appropriate to prevent the bullying behaviour occurring at work.

What Orders can the Commission make?

The Commission’s orders may include orders that:

• an individual or group stop specified behaviour;
• the employer conduct regular monitoring of behaviour in the workplace;
• the distribution of the employer’s workplace bullying policy and other information on bullying to workers in the workplace;
• the employer provide support or training to workers;
• the employer conduct a review of its workplace bullying policies.

Importantly, the Commission will not include the payment of monetary settlements in its Orders. Workers seeking compensation for psychological or other injuries caused by bullying behaviour in the workplace will instead need to claim under the existing Workers Compensation legislation.

Although the Commission’s order will not include financial penalties itself, a breach of the order could result in a fine being imposed on the employer or other individuals by the Commission.

Judging by the number of enquiries made to this office about bullying and harassing behaviour in the workplace, it is expected that the new year will see a significant number of workers making use of the Commission’s new anti-bullying jurisdiction.

For employers concerned with managing their risk of exposure to anti-bullying claims, it is recommended that existing policies and procedures be reviewed to limit bullying behaviour in the workplace and to ensure complaints of bullying behaviour are dealt with appropriately.