Bullying and the Fair Work Act
Employers need to be aware that there have been recent changes to the Fair Work Act. From 1 January 2014, workers who reasonably believe they have been bullied at work will be able to apply to the Fair Work Commission (FWC) for an order to stop the bullying.
The definition of bullying is similar in both the State Act and Federal Legislation. In the Federal Act it is defined as: “Repeated, unreasonable behaviour directed towards a worker or group of workers that create a risk to health and safety”
THE MESSAGE
- Workers can make a claim to the FWC if he/she reasonably believes that he/she has been bullied;
- FWC must commence to deal with the complaint within 14 days – it can: Seek information (e.g., documents, statements) Hold a conference (e.g., mediate) Hold a hearing
- FWC can issue orders to prevent the bullying, and a breach of these orders can result in substantial penalties for employers, and the penalty imposed can be paid to the employee.
THE RISKS
- Accessorial liability for persons involved in the breach (e.g., management and directors)
- FWC complaint does not prevent other proceedings such as breaches of OH&S laws 
- Management could lose control of complaints
- Complicates performance management and disciplinary matters
- More complaints going external
- Preserving employment relationships becomes harder; and
- Potential strategic use by employees
LESSONS FOR EMPLOYERS
- Be pro-active
- Review your procedures
- Conduct regular training
- Up skill managers to deal with performance management
- Educate managers to ensure they follow process
- Consider informal resolution options to preserve the employment relationship
- Deal with complaints promptly
- Ensure employee commitment to your processes and policies
- Use independent external investigators
- Keep employees and others fully informed
- Ensure there are no delays in the process
If you have any questions about the changes to the Fair Work Act, require an investigation or any other matter feel free to contact Natasha Fletcher at WPL on 9861-4055.