Under the Work Health and Safety Act 2011, employers are obliged to take all reasonably practicable steps to manage health and safety risks in their workplaces. Bullying is one such health and safety risk, and failure to manage and prevent bullying could constitute a breach of the Act and could have serious repercussions, not just for those bullying or being bullied, but for your organisation as a whole.
As from 1 January 2014, the Federal Government will introduce new federal anti-bullying laws which are designed to stop workplace bullying promptly. However, the laws do not give bullying victims an entitlement to monetary compensation or reinstatement of their position. From 1 January 2014, a worker who is being ‘bullied at work’ or believes they have been bullied at work will be able to apply directly to the Commission for an order to stop the bullying.
These new laws will cover contractors, subcontractors, outworkers, apprentices, trainees and students gaining work experience as well as volunteers.
Under the new provisions, a worker can bypass his or her employer and lodge a claim directly with the Commission. The Commission is required to deal with an application within 14 days after the application is made – the time limits will mean an employer will have very little time to investigate, assess, and respond to a claim. Under the new laws, employees can formally require the Fair Work Commission to order employers to take action against bullying colleagues and managers. The FWC will have the power to issue an order to the alleged bully or bullies, to put a stop to the disputed behaviour.
With the introduction of these new laws, it is essential that an organisation has an effective workplace bullying policy which includes:
1. a definition of workplace bullying, including a statement that workplace bullying is unlawful;
2. a complaints process; and
3. information about the consequences for a worker who has engaged in workplace bullying.
Bullying is defined as follows:
A worker is bullied at work if an individual or a group of individuals repeatedly behaves unreasonably towards the worker or a group of workers of which the worker is a member and that behaviour creates a risk to health and safety.
It is irrelevant whether the individual or individuals who are bullying intend to bully the victim.
It is important to note that bullying involves repeated unreasonable behaviour. An isolated incident is insufficient.
Importantly, the definition has retained the exemption for reasonable management action which is carried out in a reasonable manner. (A performance assessment/review that you disagree with will not constitute bullying!)
Bullying can include more obvious and overt behaviours, such as:
• intimidation
• verbal abuse
• assault
• physical aggression/violent behaviour
• spreading rumours about someone
• constant name calling
• practical jokes
• harassment/sexual harassment,
• trolling on social media.
But bullying can also include behaviours such as:
• constant unjustified criticism or complaints
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