On 1 January, amendments to the Fair Work Act 2009 (Cth) brought in a whole new set of anti-bullying workplace laws, never before seen anywhere else in the world. What makes this reform unique is that a worker is now able to challenge bullying behaviour directly in a civil claim before the Fair Work Commission (FWC), regardless of any other legislative recourse that may be available. Previously, workplace bullying was dealt with in other areas, such as under work health and safety law and anti-discrimination law.

The FWC expects to receive about 3500 complaints under the new regime over the next 12 months. However, leading lawyer in the field of workplace relations, consultancy and HR, Joydeep Hor from People + Culture Strategies, predicts the number to be closer to twice that figure.

So what is ‘bullying’ under the new laws?

A worker who has a reasonable belief that he or she has been bullied at work can apply to the FWC for an order to compel the bullying to cease. Under s 789FD(1), a  worker is bullied if, while at work, another individual, or group of workers, repeatedly behaves unreasonably towards him or her, in a way that creates a risk to health (including mental health) and safety. No definition or test for ‘unreasonable behaviour’ is provided in the legislation. Before making an order, the FWC must be satisfied that this bullying has in fact occurred, and that there is a risk that the worker will continue to be bullied by the individual or group.

The new laws have been drafted extremely broadly, making it impossible to know what kind of conduct will constitute ‘bullying’ within the meaning of the Act. Its breadth allows much scope for subjective interpretation, placing the reach of the legislation in the hands of the FWC.

Who will be affected by the changes?

Employees, contractors, work experience students and volunteers all fall within ‘worker’ as defined by the Act, enabling them to make a bullying claim under the regime. Additionally, a worker can apply for an order in their personal capacity, or in a group of co-workers complaining of the same behaviour. This possibility of group claims may greatly increase the FWC’s workload, where individuals who may not be prepared to take action alone would do so in solidarity.

All ‘constitutionally governed businesses’ have found themselves subject to the new law. This term covers approximately 91-92% of businesses, excluding only partnerships, sole traders, state government departments and entities and  volunteer associations with no employees.

Creating a bullying-free workplace

Even if the FWC finds that a claim of bullying is founded under s 789FD(1), the business will be exempt from an order, if the FWC is satisfied that reasonable management has been carried out in a reasonable manner. Compliance with the laws will therefore be strongly linked to the existence of adequate grievance policies and investigation procedures for bullying claims. In determining whether reasonable management was undertaken in the circumstances, the FWC may consider the outcome of any investigations that have been conducted into the matter, whether a grievance or disputes procedure is in place, and if so, the outcomes that are produced.

Performance management is also crucial: Mr Hor has observed that bullying claims are often sparked by lack of adequate performance management policies. This deficiency can lead to inappropriate reporting back to the worker about their performance, who in turn reacts by making a claim of ‘bullying’, in their distressed state of feeling unfairly targeted.

What measures should your business be aspiring to implement? Platinum members read on for what actions your business needs to make to ensure that your business is prepared to deal with potential complaints.

While the new anti-bullying workplace laws may seem to be imposing an overwhelming burden on employers, the reality is that behaviour and culture policies and performance management strategies already exist in most workplaces. The laws represent an additional incentive for businesses to improve and refine these policies and mechanisms with workplace bullying in mind. In the meantime, all we can do is wait and see what kind of decisions the FWC hands down under the Act.

For more information on the new Anti-Bullying Laws, you can download a recording of Mr Hor’s recent Webinar on the subject here.

Build these documents now:

• Employment Contract
• Webinar Recording - Are you Ready for Bullying in the Workplace?
• Independent Contractors Agreement