Bullying and Harassment
On 1 January 2014 new federal anti-bullying laws commenced operation. These amendments to the Fair Work Act 2009 were introduced and passed during the term of the previous Labor Government but were delayed by the Senate until the beginning of the year. These laws were well overdue and a very welcome addition to the legislative safety net for Australian workers.
How prevalent is workplace bullying?
According to “Workplace Bullying – We just want it to stop” (House of Representatives Standing Committee on Education and Employment Inquiry into Workplace Bullying Report, October 2012) anywhere between 6.8% to 33% of Australian workforce have experienced bullying at work, depending on which survey is used. The Productivity Commission estimates that workplace bullying costs the Australian economy between $6 billion and $36 billion every year. Workplace bullying costs employers an average of $17,000 to $24,000 per case. These costs can be directly or indirectly borne by the employer.
And these costs fail to account for the human costs including reduced quality of life for victims, colleagues, children, spouses and costs to the greater community. Bullying results in significant negative consequences for an individual’s health and wellbeing. People who have been exposed to bullying at work have been found to experience a range of medical and psychological problems, such as post-traumatic stress disorders, depression, anxiety, sleep disturbances, lowered self-esteem, anger, chronic fatigue, suicidal thoughts, irritability, feelings of nervousness, insecurity and victimisation, burnout, musculoskeletal complaints and muscular tension, headaches, nausea, stomach upset and social withdrawal.
With the introduction of new anti-bullying laws there is now a process available through the Fair Work Commission which allows an individual right of recourse for people who are targeted by workplace bullying to seek remedies.
What does this mean?
From 1 January 2014 the Fair Work Commission has the power to make orders to stop bullying.
What is bullying?
Workplace bullying occurs when an individual or group of individuals repeatedly behaves unreasonably towards a worker or a group of workers at work and the behaviour creates a risk to health and safety.
For the Commission to deal with a bullying dispute the conduct must be:
- At work;
- Unreasonable; and
- Create a risk to health and safety.
The behaviour can be carried out by one or more individuals. It can also be carried out against an individual worker or a group of workers.
Reasonable management action
Reasonable management action conducted in a reasonable manner does not constitute workplace bullying.
Do events which occurred before 1 January have any relevance?
Yes. On 6 March 2014 the Fair Work Commission decided that it has the jurisdiction to hear and determine an application involving alleged bullying conduct which occurred prior to the commencement of the law - Application by Kathleen McInnes  FWCFB 1440.
This means that bullying conduct which occurred before 1 January is relevant and will be considered.
What to do if you are bullied
I you believe you have been subjected to or witnessed workplace bullying, SDA members should in the first instance speak to your site’s Union Delegate immediately or contact the Branch office for advice and assistance.
Under the new laws, the SDA can make an application on behalf of member(s) to the Commission for an order to stop the bullying.
In the first instance the Union will investigate any allegations of bullying made by members and, in most cases, seek to resolve the complaint through your workplace grievance procedure.
If, however, this is unsuccessful and the claim has industrial merit, the Union will assist you in making an application to the Commission for orders to stop the bullying.
What will the Commission do?
The Commission must start to deal with an application for an order to stop bullying within 14 days after the application is made.
The Fair Work Act provides the Commission with flexibility to inform itself as it considers appropriate in relation to an application for an order to stop the bullying. This may include contacting the employer or other parties to the application, conducting a conference or holding a formal hearing.
What orders can the Commission make?
The Commission can make any order it considers appropriate (other than an order requiring a financial payment) to prevent a worker from being bullied at work by an individual or group of individuals.
Before an order can be made, a worker must have made an application for an order to stop bullying and the Commission must be satisfied that:
- the worker has been bullied at work by an individual or group of individuals; and
- there is a risk that the worker will continue to be bullied at work by the individual or group.
The power of the Commission to grant an order is limited to preventing the worker from being bullied at work, and the focus is on resolving the matter and enabling normal working relationships to resume.
The Commission has a very broad discretion to make any orders it considers appropriate (other than those requiring a financial payment).
What must the Commission consider?
When deciding what should be contained in an order to prevent further bullying behaviour, the Commission must, to the extent that it is aware, take into account:
- any outcomes arising from an investigation into the matter by another person or body (whether that investigation is complete or not)
- any procedures available to the worker to resolve grievances or disputes, and any outcomes arising from those procedures, and
- any matters that the Commission considers relevant.
There is now a pathway, for the first time, for workers to acquire timely and efficient assistance from the Fair Work Commission when their employer has failed, neglected or refused to address repeated unreasonable behaviour in the workplace and that conduct creates a risk to health and safety.
Over time this law will develop and we will see cases emerge. From those cases we will see how effective the law becomes. But in reality the success of these laws will also be measured in other less obvious ways:
- The many cases which are settled and never reach arbitration because the worker has secured an outcome; and
- (Hopefully) the decline in the reported bullying statistics over time.
* In preparing this material the Branch has sourced information from the Fair Work Commission Anti-bullying Benchbook (as at 4 March 2014).