Bullying can have a very negative impact on the health and wellbeing of the targeted individuals and can result in depression, anxiety, sleep disturbances, lowered self-esteem and even suicidal thoughts.

As part of a policy response to this increasingly recognised problem, the Fair Work Commission now considers bullying when reviewing matters as part of its role in relation to general workplace protections.

From 1 January 2014, the Fair Work Commission (FWC) will have the power to make stop-bullying orders. From this date, a worker who considers themselves to be suffering from bullying at work will be able to apply to the FWC for an order to stop the bullying. The FWC must begin dealing with the matter within 14 days.

The FWC can make a stop-bullying order if the details provided by the applicant satisfy the definition of bullying under the Fair Work Act: that is, if “an individual or group of individuals repeatedly behaves unreasonably towards the worker… and such behaviour creates a risk to health and safety“. While it won’t be within the FWC’s purview to order monetary payments as part of a stop-bullying order, it will be able to refer the matter to a WHS regulator who may conduct an investigation. The applicant will also be able to seek a civil remedy if a stop-bullying order is not complied with.

The FWC President, Justice Iain Ross, has been quoted as saying “The new anti-bullying jurisdiction is not an avenue to provide compensation to those who have been subjected to bullying; and nor is it about penalizing employers. It is directed at preventing workers from being bullied at work.”

However, from the employer’s perspective, implications of being issued with a stop-bullying order include the possibility that the WHS regulator will consider this as an indication of breach of “reasonably practicable” efforts to ensure workers’ health and safety under the harmonised Work Health and Safety Act, as well as evidence that officers have failed their due diligence obligations under the Act.

In preparation for the changes commencing on 1 January 2014, the FWC has released a draft anti-bullying Case Management Model, and has also published a draft Anti-bullying Benchbook for public comment. Safe Work Australia also recently announced the new Guide to Preventing and Responding to Workplace Bullying.

Appropriate action for employers prior to 1 January to address this developing space include:

  • Gain familiarity with the guide materials released by the FWC (above) and the just-released new Guides from Safe Work Australia:
  • Develop or update written policies on bullying, harassment and discrimination
  • Develop or update formal complaints and grievance procedures
  • Develop or update investigation and mediation processes
  • Consider social media policies in the light of bullying concerns and the above policies and procedures
  • Regularly provide training for everyone in the workplace on the policies/acceptable practices
  • Ensure senior managers are leading by example with their behaviour towards subordinates and colleagues
  • Ensure records are kept as evidence that fairness has been afforded to workers during performance management processes (such as notices of meetings and relevant issues, the availability of a support person etc.)
  • Consider whether there are third-party contracts which need to be adjusted to address the issue (subcontractors and labour-hire workers fall within the definition of “worker” in the anti-bullying provisions).

Please contact QRMC for more information.