Australia’s new workplace anti-bullying laws commenced on 1 January 2014, providing your employees, volunteers, work experience students, interns and apprentices with the right to apply to the Fair Work Commission directly if they feel they have been bullied. The Commission has the power to make an order for the bullying to be stopped.
What is considered bullying?
Under the amended law, bullying happens when:
- an individual or group repeatedly behaves unreasonably towards a worker or group
- the behaviour creates a risk to health and safety.
Bullying doesn’t include:
- one off instances of insensitivity or rudeness, or
- reasonable management activities carried out in a reasonable manner.
Firstly, it is important to note that the anti-bullying laws only apply to “constitutionally covered businesses”, such as corporations (e.g. Pty Ltd), sole traders in ACT and NT. This means that the anti-bullying laws do not apply to unincorporated associations such as partnerships or sole traders in the States (e.g. NSW).
If the employer does fall within the definition of a “constitutionally covered business”, and if they haven’t done so already, it should seriously consider implementing a Fair Work compliant workplace bullying policy.
Guidance as to how the Fair Work Commission would deal with an anti-bullying claim can be found in its Anti-Bullying Case Management Model.
What about other employers not covered by the Federal law?
State-based employers (such as sole traders and partnerships) still need to be mindful of bullying claims being made by employees, which may be in breach of the State-based workplace health and safety laws (such as the NSW Work Health and Safety Act 2011 – in particular, section 19 regarding the employer’s primary duty of care to its employees).
Workcover NSW recommends that victims of alleged bullying “check to see if [their] workplace has a policy to prevent, report and deal with bullying.” To assist employers, there is plenty of information on the Workcover NSW website in relation to bullying, such as:
- Being Bullied?
- Preventing and Responding to Bullying at Work
- Sample policies for different types of workplaces.
Contact the team at Shire Legal if you have any questions about bullying in the workplace, or if you need assistance implementing an appropriate anti-bullying policy.