How does the anti-bullying scheme in the Fair Work Act apply to you and your employees?

Since the introduction of the new anti-bullying legislation, located in the Fair Work Act 2009 (‘FW Act’), many employers and employees have questioned if these provisions apply to them.

The new anti-bullying measures apply only to those who work in a ‘constitutionally-covered business’.

A ‘constitutionally-covered business’ is any corporation which has employees and in most cases included all types of employers, except state services.

What is bullying?

Fair Work Australia defines bullying in the workplace as repeated and unreasonable behaviour directed towards a worker or a group of workers that creates a risk to health and safety.

Examples of bullying include aggressive or frightening behaviour, abusive, belittling or intimidating phone calls, emails, notes and baiting or unreasonable teasing of an individual or group. Workplace bullying can be carried out in a variety of mediums such as text messaging, e-mails, phone calls, via the internet and other social media forums.

However, bullying does not include:

(a)   reasonable management action carried out in a reasonable manner; or

(b)   workplace conflict (i.e. differences of opinion or disagreements).

Who can apply?

Under section 789FC of the FW Act a worker who reasonably believes that he or she has been “bullied at work” can apply to the Fair Work Commission (the “FWC”) for an order.

A “worker” is defined as someone who performs work for a person conducting a business, regardless of their capacity within the job. Therefore, a worker can be an employee, a contractor, a subcontractor, an outworker, an apprentice, a trainee, a student gaining work experience or a volunteer.

“Bullied at work” means that the alleged bullying conduct must have occurred in the workplace, which includes, any location and at any time the worker is performing their duties.

The steps involved:

1.     A worker lodges an application to the Fair Work Commission.

2.     Within 14 days of lodgement, the application is checked to ensure it is complete and valid. The FWC may contact the applicant to clarify and confirm their intentions before serving notice to the other party.

3.     The application is served by the commission, on the applicant’s behalf, to the employer.

4.     Those individuals who are so named on the application will be served and given an opportunity to respond.

5.     A report is made to the panel head, by the anti-bullying team, which will indicate if the commission will hear the matter or if there are other suitable means of obtaining a resolution.

If the applicant is successful then orders may include:

·       That the person who was the subject of the application arrive at a certain time so to not come across the applicant upon arrival at work;

·       That no contact shall be made between either party;

·       That no comments or statements be made about the applicant from the other party; or

·       That, unless it is an emergency, no party shall communicate with one another.

If you believe that bullying is occurring in your workplace and/or if you need advice regarding how to prevent it from continuing, then please schedule an appointment with one of our employment lawyers so we can assist you to find a solution.

Foulsham and Geddes notes that this article is written for the purpose of providing generalised information and not to provide specialised legal advice.

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