The Federal Government has introduced a proposed Bill to amend the Fair Work Act 2009 (Cth) (FW Act) to allow employees who believe they have been subjected to workplace bullying to have their grievance heard in the Fair Work Commission (the FWC), a move that may potentially lead to an influx of new workplace litigation.
This announcement followed the report by the House of Representatives Standing Committee on Education and Employment into workplace bullying.
The proposed reforms would require the FWC to deal with an employee’s application as a matter of priority, by listing it for consideration within 14 days. Given the statistics in relation to the extent of workplace bullying within Australia (that between 2.5 and 5 million Australians will experience workplace bullying at some point during their careers), this proposal may lead to a significantly increased workload for the FWC.
The Bill also proposes to define the concept of workplace bullying as “repeated, unreasonable behaviour directed towards a worker or a group of workers that creates a risk to health and safety.”
Importantly for employers, the proposed definition of ‘workplace bullying’ expressly excludes reasonable management practices, including performance management. However, it is not clear whether the FWC will not have jurisdiction to hear a bullying claim in relation to performance management, or whether an alleged “bully” will need to establish the reasonableness of their actions.
Other key aspects of the proposed Bill include:
- providing powers for the FWC to make orders to deal with the complaint; and
- civil penalty provisions of up to $33,000 for a failure to comply with an order of the FWC.
At present, there is still a lack of detail in relation to the proposed amendments, including who will be parties to a bullying dispute if the alleged bully is another employee, and not the employer.
While workplace bullying is clearly a serious issue, involving the FWC to investigate bullying complaints (as compared to larger industrial matters or disputes) is arguably not the best use of the FWC’s resources. Also, the impact on an accused bully (or the victim) of the FWC publishing a publicly accessible decision regarding a bullying complaint, should also be carefully considered.