The new anti-bullying jurisdiction under the Fair Work Act 2009 (FW Act), which commenced on 1 January 2014, introduces an ‘individual right of recourse’ to the Fair Work Commission (FWC), that is designed to be both ‘speedy’ and ‘inexpensive’.
The emphasis on providing a ‘speedy’ individual right was reflected in the Second Reading Speech, with the (then) Minister for Employment and Workplace Relations stating that ‘… we need this new individual right of recourse to encourage early intervention to stop the bullying, to help people resume normal working relationships, and to prevent further episodes of bullying into the future.’
Under section 789FD(1), there are two threshold definitions that must be met in the first instance for an individual to be bullied at work. The individual must be a ‘worker’ within the meaning of the Work Health and Safety Act 2011 (which includes an individual who performs work in any capacity, including as an employee or a contractor), and the relevant conduct must occur while the worker is ‘at work’ at most Australian workplaces.
The focus then shifts to the relevant ‘bullying’ conduct, which will be established if an individual or group of individuals repeatedly behave unreasonably towards the worker or a group of workers including the worker (the unreasonable behaviour), and the unreasonable behaviour creates a risk to health and safety. Reasonable management action carried out in a reasonable manner is expressly excluded from the conduct described in section 789FD(1).
Importantly, a finding that a worker has been ‘bullied at work’ does not, of itself, permit the FWC to make an order. The second stage of the process provides the additional temporal requirement that there be a risk that ‘the worker will continue to be bullied at work by the individual or group’. If the FWC is satisfied that such a risk exists, it has the discretion to make any order it considers appropriate to prevent this further conduct from occurring, save for making any award of compensation (an anti-bullying order). The FWC may take into account any relevant matters in considering the terms of an anti-bullying order, but must have regard to any investigation outcomes (interim or final) and dispute resolution procedures at the workplace level.
While the sentiment behind the new jurisdiction has been generally supported by all industry participants, its breadth, and particularly the potential for individuals to privately bring claims of ‘bullying at work’, has caused concern for employers; in particular whether the objective of preventing what is ostensibly a health and safety risk such as workplace bullying is best achieved under the ‘rough and tumble’ of industrial law.
To date, the anti-bullying jurisdiction remains a case of ‘watch this space’. On 5 February 2014, the FWC published a media release announcing that it had received 44 anti-bullying applications so far, but that no orders had yet been made. Of additional interest will be whether the current Government seeks to retain the anti-bullying jurisdiction in its current form. In its pre-election policy, the Government provided qualified support for the anti-bullying jurisdiction, but stated that it would introduce amendments so that a worker will be required to first seek help and impartial advice from an independent regulatory agency, and further, the jurisdiction be expanded to include the conduct of union officials towards workers and employers.