New Workplace Bullying Laws

Employees will soon be able to ask the Fair Work Commission to intervene in alleged instances of workplace bullying, with amendments to the Fair Work Act 2009 coming into effect on 1 January 2014. The legislation introduces anti-bullying laws and establishes a specific division within the Commission to govern the new jurisdiction, in a change that could cause headaches for employers.

As a consequence of the new laws, workers who ‘reasonably believe’ they are being bullied at work may apply to the Commission for an order to stop the bullying. The use of the words ‘reasonably believe’ within the legislation will significantly increase a workers’ ability to bring claims against their employer, as to have standing they will only need a reasonable belief that they are being subject to bullying. Previously, workers alleging bullying at work had to craft claims against their employer within the (often narrow) limits of existing WHS laws, discrimination laws, or general protections (adverse action) laws available within the Fair Work Act 2009.

It is important to note, however, that the available remedies under the new regime do not extend to any compensatory relief. Indeed, the only powers of the Commission will be to issue “Stop Bullying” orders. As President Justice Iain Ross explained in a recent press release by the Commission:

“The new anti-bullying jurisdiction is not an avenue to provide compensation to those who have been subject to bullying, and nor is it about penalising employers. It is directed at preventing workers from being bullied at work”.

The scope of a Stop Bullying order will extend to the Commission making orders requiring, for example:

  1. individuals or groups to stop specified behaviour;
  2. employers to regularly monitor certain behaviour;
  3. individuals to comply with their employer’s workplace bullying policy, and for employers to provide such policies to workers;
  4. employers to review their policies or provide workers with support and training.

In anticipation of the new bullying regime, businesses may protect themselves through a voluntary review of their current workplace bullying policies or, if no such policies are in place, ensure that policies are prepared and implemented as soon as possible. Best practice could also require some refresher training for staff, whether conducted internally or with the benefit of a third party trainer (depending on the size of the organisation).

While the new legislation’s ultimate effect on workplace bullying remains to be seen, employers should be aware of the potential for these claims to arise in 2014. In anticipation of a significant number of bullying applications being received, the Commission has released procedural guidelines for how bullying applications are to be conducted. In the first instance, the parties will be required to attend a compulsory conciliation. If the matter is unable to be resolved by conciliation, the Commission may then impose directions for the matter to be referred to arbitration for final determination. Noting that the bullying division will be a ‘no costs’ jurisdiction, responding to such claims will undoubtedly be a strain on human resources available to small to medium enterprises.

By Ian Meagher, Director, Employment Law and Litigation.

If your business is faced with such an application, please do not hesitate to contact the Bradley Allen Love Employment Law team for further information.