Bill on Workplace Bullying Introduced to Australian Parliament
Andrew Ball, DLA Piper, Sydney, Australia
The Bill is intended to amend the Fair Work Act 2009 (Cth) to give effect to, amongst other things, the Federal government's response to the House of Representatives Standing Committee on Education and Employment's November 2012 report, Workplace Bullying: We Just Want It to Stop.1 This was the second significant change to employment legislation introduced by the Minister since the start of 2013.
There are currently no specific anti-bullying laws in Australia or any piece of legislation that defines bullying or gives individuals a cause of action in relation to bullying. If an individual wishes to bring a claim about bullying he or she currently has to pursue it indirectly through claims such as workers compensation, breach of contract, discrimination or victimisation.
In relation to bullying, the Bill amends the Fair Work Act 2009 (Cth) to:
- Allow a worker who has been bullied at work to make an application to the Fair Work Commission for an order to stop the bullying;
- Define what is meant by 'bullied at work' which is consistent with the definition of 'workplace bullying' recommended in the Report and the proposed code of practice by Safe Work Australia;
- Require the Fair Work Commission to start dealing with an application by a worker for an order to stop bullying within 14 days of the application being made; and
- Enable the Fair Work Commission to make any order it considers appropriate (except payment of a pecuniary amount) to stop the bullying.
The Fair Work Commission will also have the power to refer the matter to a work health and safety regulator where it considers it appropriate.
Additionally, the Bill amends the civil remedy provision in the Fair Work Act 2009 (Cth) to allow a person affected by a contravention of an order made with respect to bullying to make an application to the Federal Court, Federal Magistrates Court or 'eligible State or Territory court' to obtain a penalty against the person not complying with the order. A maximum of 60 penalty units apply to the contravention, which amounts to approximately $10,200 for individuals and $51,000 for corporations.
The Fair Work Commission has been given broad powers under the Bill. This means that the Commission may make any order it considers appropriate to prevent a worker from being bullied at work by an individual or a group of individuals. The ramifications of this could be significant as this means that orders could apply to co-workers and visitors to the workplace. Orders could also be based on threats made outside of the workplace, if the threats relate to work. Therefore, the jurisdiction given to the Fair Work Commission by the Bill has the potential to affect not only the complainant and individuals/group of individuals involved, but potentially entire sections or departments of an employer that do not relate to the bullying complaint or the application made to the Fair Work Commission.
Significantly, the Explanatory Memorandum notes that employers will still have the ability to take reasonable management action in relation to counselling for performance and taking appropriate disciplinary action.