As from the beginning of the year, the Fair Work Commission has been receiving and dealing with employee applications to end bullying in the workplace.

The legislation for the Commission’s jurisdiction was introduced by the former federal Labor government and passed by Parliament last year. While the jurisdiction does not apply to as many people as desirable, for those affected workers who are covered it provides a cheap and efficient option to take action, especially where an employer fails to take sufficient action to stop bullying in the workplace.

Under the jurisdiction, workers who reasonably believe that they are being bullied at work can apply to the Commission for an order to stop the bullying. Bullying is defined as repeated unreasonable behaviour that creates a risk to health and safety. The Commission is required to start dealing with any applications within 14 days. The Commission is not able to award monetary compensation but, if it determines that bullying has occurred and there is a risk that it will continue, is able to make orders directed at the relevant individuals (eg. work colleagues or managers) to cease bullying conduct.

Despite alarmist claims from some employer groups and conservative commentators that the jurisdiction would lead to a flood of claims, the number of applications so far has been less than predicted. In the first quarter of 2014, the Commission received 151 applications; the Commission had been preparing itself for about 3,500 applications annually.

Few published decisions have so far been made, mainly on the basis that most applications are able to be resolved between the relevant parties, so the details remain private. In one of the few matters so far where the Commission has made an order, the Commission ordered that an employee found to be bullying should have no contact with the applicant, make no comment on the latter’s clothes or appearance, not send any emails or texts to the applicant except in emergency circumstances, and ordered that both parties not come to work and leave work by a particular time.

One unfortunate hole in the jurisdiction is that it generally does not apply to those working in the public sector, except for the Commonwealth and territory public sectors. The bullying laws therefore are mainly restricted to those employers who can be considered to be ‘corporations’. Unfortunately this is not an easy question to resolve, however many state public sector entities and local councils are not corporations. For example, the Commission has decided that a not-for-profit service in Victoria which received government funding to provide support services to people with psychiatric disabilities was not a trading corporation, therefore the applicant employee could not proceed with her claim. This means that many public sector nurses (outside the federal or territory public services) will not be able to access the jurisdiction, however given the uncertainties you should ask your branch for advice.

A recent NSW Parliamentary inquiry into the state’s workplace health and safety regulator WorkCover NSW, which was (ironically) found to be rife with bullying, noted the legislative gap and has recommended that the NSW Parliament pass similar anti-bullying laws to remedy the deficiency.

The need for laws regarding bullying is demonstrated by a recent statement released by Safe Work Australia, the national health and safety body. It found that the rate of workers’ compensation claims made on the basis of bullying has increased over the last ten years. It also noted that the health and community services industry had the third highest frequency of claims.

Another area where the Commission has made recent decisions is in relation to whether an employer’s action was ‘reasonable management action carried out in a reasonable manner’. If particular conduct is considered as such, then it is defined not to be bullying. This issue will frequently arise where allegations of inadequate performance are made by the employer. In one decision, the Commission found that the employer’s conduct in handling bullying complaints made against the applicant herself was reasonable including by referring the complaints to an investigation and the way the investigation was carried out.

Aside from bullying laws that allow affected individuals to take action, employers are also legally obliged to ensure a healthy and safe workplace by preventing bullying occurring in the first place. As a health and safety issue, bullying should be dealt with in the same way as any other workplace hazard: by the employer assessing the likelihood of health and safety problems arising, devising and applying suitable measures to prevent bullying occurring and then monitoring and reviewing measures to ensure their effectiveness. If bullying is reported, employers should act to address the problem and put in place measures to ensure it does not continue or recur in the future.

If you believe you are a victim of bullying or have had bullying allegations made against you, you should speak to your relevant ANMF branch for further advice

Andrew McCarthy
Federal Industrial Officer