Alter Behaviour or Pay the Consequence

At a recent presentation an employer in the audience described himself as a gruff man and many would say he treated people in a rude and abrupt way “but that’s just the way I am” he said. I thought to myself, this man is going to have to alter his behaviour or quite literally ‘pay’ the consequences if he repeatedly treats people in this manner.

Businesses must have their policies and procedures in place and adhere to them in order to address bullying related to the workplace. Managers must document their actions in short and plain English, consistent with company requirements. Businesses must investigate reports of poor behaviour, never ignore them and inform their insurers.

An employee can report bullying by a co-worker, a volunteer, another service provider and even a customer.

The Fair Work Amendment Act comes into effect on the 1st January, so read on.

New Fair Work Anti Bullying Legislation

“Workplace Bullying – We just want it to stop”

The Fair Work Amendment Act 2013 comes into effect from 1st January 2014 with the potential for significant impacts on businesses including workers’ compensation.  The aim of the legislation is to ensure early intervention and to stop instances of bully before they escalate.

What is Bullying?

“A reasonable belief of repeated unreasonable behaviour towards a worker, or group of workers of which a worker is a member, that creates a risk to health and safety”

It is important to distinguish that “reasonable management action carried out in a reasonable manner” is not bullying

Who can apply to Fair Work under this Legislation?

  • A worker who reasonably believes he or she has been bullied at work.

A worker can be broadly defined as:

  • Employees
  • Contractors
  • Subcontractors
  • Outworkers
  • Apprentices
  • Trainees
  • Work experience students
  • Volunteers
  • There is no requirement for a worker to make their complaint internally first.  They may go straight to Fair Work

What type of businesses does the Legislation apply to?

Only workers engaged by a “constitutionally covered” business or undertaking may apply to Fair Work under this legislation. Therefore the legislation precludes workers who are engaged by an individual, partnership, or body corporate that is not a constitutional corporation and this may mean that some local government bodies could be excluded.  Further provisions expressly exclude members of the Australian Defence Force.

Fair Work Must Act Promptly

Fair Work must start dealing with applications within 14 days

Fair Work can inform itself of the relevant circumstances and facts by:

  • Requiring a person or persons to attend before the Fair Work Commission
  • Invite written or oral submissions
  • Require a person to provide copies of documents or records, or any other information

It is anticipated that the a Fair Work Commissioner will most likely make contact with the employer first and then triage with all other parties

Fair Work can inform itself by:

  • Taking evidence under oath
  • Conducting an enquiry
  • Conducting a conference or hearing

Fair Work can:

  • Make recommendations
  • Express an opinion
  • Refer the matter to another regulator

Fair Work must consider the following when making an order:

  • If Fair Work is made aware of any outcomes from an investigation, those outcomes
  • If Fair Work is aware of any grievance procedures available and any outcomes from the procedure
  • Any other relevant matters

Orders that Fair Work Can Make

  • Fair Work can make an order when it is satisfied that the worker has been bullied and there is a risk that the bullying will continue.
  • Any orders it considers appropriate (other than orders for reinstatement or compensation)
  • Fair Work May make orders:
    • To stop the specified conduct
    • For regular monitoring of behaviour
    • For compliance with a bullying policy
    • For training and additional support
    • For review of any bullying policy
    • These orders may apply to
      • The employer
      • Employee and co-workers
      • Visitors to the workplace
      • Fair Work Orders can be used as evidence in WHS prosecutions
      • Breach of an order is a civil penalty and fines of up to $51,000 for a corporation and $10,200 for individuals could be imposed
      • Fair Work has the power to dismiss
        • An application from members of the Australian Defence Force and Australian Federal Police
        • An application that is frivolous or vexatious
        • An application with no reasonable prospect of success

What We Don’t Know

  • What time frames there are to make an application
  • The scope of “at work”
  • What requirements there may be for medical evidence in support of risk to health and safety
  • How an application through Fair Work may influence the liability decision on a resultant workers’ compensation claim.

Advice to Employers

  • Review existing anti bullying  and complaint procedures
  • If your organisation doesn’t have these policies – Get Some!
  • Ensure there are effective systems in place for handling bullying complaints
  • Conduct training for managers, workers, contractors and any other relevant persons in the process for anti bullying at your organisation
  • Respond promptly to any complaint of bullying
  • Consider the use if independent investigations to any allegations.

 

Bullies Beware!!

Employers Prepare!!!