New bullying jurisdiction
The new bullying jurisdiction: Are you ready?
In a rare moment of bipartisanship, both sides of politics are preparing to pass new laws relating to the prevention and resolution of workplace bullying. On 17 June 2013, the second reading of the Fair Work Amendment Bill 2013 (Cth) was moved in the Senate. Employers need to act now to ensure they are in the best position when the laws commence operating on 1 January 2014.
Key features of the proposed jurisdiction
When passed, the new laws will allow employees and other workers to make a claim to the Fair Work Commission in relation to allegations of bullying from 1 January 2014. Key feature of the news laws include:
- workers will be able to make a claim if they reasonably believe they have been bullied
- the Fair Work Commission will have broad powers to seek information, hold conferences and, if required, hold a full hearing and make orders against employers
- the Fair Work Commission must not make orders without first considering the status of the employer’s internal processes (for example, any final or interim investigation findings and the employer’s bullying resolution procedures)
- employers will need to be ready to respond to claims quickly, probably within 14 days
- and breaches of bullying orders could expose employers to fines of up to $51,000. Importantly, the Commission does not have the power to make orders of compensation directly to the employee.
You can follow the progress of the Fair Work Amendment Bill 2013, by clicking here.
Reducing your risk
Working in tandem with these new laws will be the new Safe Work Australia Bullying Code of Practice. This document, which is nearing finalisation, will provide a best practice guide for employers in responding to workplace bullying. Importantly, an employer’s compliance (or more commonly breach) of this Code will be admissible in safety proceedings and may form the basis for action taken by safety officials.
The code calls on employers to implement control measures including training, policies and appropriate bullying response procedures. It also places an onus on employers to ensure that complaints are addressed by appropriately qualified personnel or external investigators.
Employers and other interested parties have an opportunity to make submissions on the draft Code by 15 July 2013. Workdynamic Australia can assist in drafting or reviewing any submissions to ensure that your views are structured in a way to achieve maximum influence.
For more information and links to the code and guidelines, click here.
What does this mean for you?
The delay in the implementation of these laws mean that employers have an opportunity to get their house in order. As a minimum, we recommend that organisations do the following:
- review your current bullying policy, grievance and investigation procedures against the recommended standards set out in the draft Code
- consider the last time your employees were trained on workplace bullying and acceptable behaviour in the workplace – is it time for a refresher? Are your employees and managers clear on the distinction between “reasonable management behaviour” and workplace bullying? If not specific training will reduce your risk
- revisit the way your grievance and investigation procedures are “advertised” to employees. A perfect policy on a shelf that no one knows about will achieve little. Do all employees have clear guidance regarding who they should contact if they feel they are being bullied?
- consider how indicators of bullying are monitored in your workplace. For example, is there a system where higher absenteeism and turnover rates are recorded and monitored? Are exit interviews reviewed for indicators of bullying?
- consider the “resources” your organisation has to promptly and properly address complaints of bullying. In the words of the Code, do you have an “unbiased person who has experience and knowledge in the resolution of workplace bullying matters” or would this capability be enhanced by an independent external investigator? Having clear guidelines regarding when an external investigator will be used and a “short-list” of external investigators on hand will allow you to respond to complaints promptly
Workdynamic Australia consultants are each legally qualified with over a decade of experience in drafting and reviewing bullying and grievance policies, training staff and managers and investigating bullying complaints. We would be happy to arrange a complimentary consultation to explore how Workdynamic can help you get ready for this new challenge.
This article was written by Jonathan Wright and Jane Wright, Directors and Principals of Workdynamic Australia. The information in this article is for information purposes only and does not constitute legal advice. You should obtain specific advice relevant to your circumstances.
- Adverse action update
- Adverse action: It’s not so much what you did, it’s why you did it
- Assumed disability discrimination
- Botched investigation leads to reinstatement of employee
- Bullying claim results in significant damages
- Commission releases anti-bullying benchbook and model
- Do policies create mutual obligations?
- Employee fairly dismissed following solicitation of clients on LinkedIn
- First bullying orders by FWC
- Flawed investigation leads to unfair dismissal
- Implied term of trust and confidence (CBA v Barker appeal)
- Insights in to the Bullying Code of Practice
- Investigation into allegations of bullying at CSIRO
- Landmark sexual harassment decision
- New bullying jurisdiction
- Recent amendments and Sex Discrimination Act
- Redundancy and adverse action
- Redundancy pay with earlier casual service?
- Redundancy update 2017
- Refusal of flexible work requests
- Round up of bullying cases
- Tendency evidence admitted in sexual harassment case
- Use of personal email in the workplace
- The high cost of failing and harassment in the workplace
- Termination of an enterprise agreement: a landmark ruling