New spotlight on bullying

Legislation would allow the Fair Work Commission to make an order to stop bullying

Joan Lemaire
Senior Vice President 

The “Anti-Bullying measure” in Schedule 3 of the Fair Work Amendment Bill has placed a new spotlight on workplace bullying.

The “measure”, due to commence in January 2014, will only apply to workers who are covered by the Fair Work Act, like TAFE teachers.

A worker who “reasonably believes that he or she has been bullied at work” will be able to make an application to the Fair Work Commission for an order to stop the bullying. There is no similar provision in NSW industrial legislation for members in schools and other workplaces.

Being “bullied at work” is defined as an individual or group of individuals “repeatedly behaving unreasonably towards the worker, or a group of workers of which the worker is a member” and “that the behaviour creates a risk to health and safety”. If the Fair Work Commission finds that a worker has been bullied it may “make any order it considers appropriate”, other than a monetary payment.

The issue of workplace bullying and the possible impact of the new anti-bullying measure was discussed at the Workplace and Industrial Relations Conference on June 17 and 18.

There is widespread agreement on the definition of workplace bullying in terms of it being repeated unreasonable behaviour which may be offensive, intimidating or humiliating to the target/s. In practical terms, however, making a finding of workplace bullying is often complicated by the fact that many organisations do not have effective complaints or investigation procedures. This can result in both the people making the complaint and the people responding to the complaint feeling they have been unfairly treated and that the complaint has not been satisfactorily resolved.

In terms of the impact of the “Anti-bullying measure” it is unclear whether the Fair Work Commission will take orders for employers and/or individuals to undertake training or adopt strategies which are aimed at preventing bullying in relation to all workers or just the individual who has applied to the Fair Work Commission for an order.

At the Workplace and Industrial Relations Conference panel members raised concerns about whether the Fair Work Commission could require an employer to restructure the company in order to separate the worker claiming to be bullied at work from the other worker or workers.

Concerns were also raised about the impact on the workplace of one worker applying to the Fair Work Commission for an order against another worker and the potential for other workers to be called in as witnesses.

Concerns like these about the implementation of the “Anti Bullying measure” need to be addressed. They should not, however, be used to defeat legislation aimed at stopping the impact of bullying on the health and safety of workers.

An immediate and positive impact of this “measure” should be that employers review their existing policies and procedures, in consultation with workers and their unions, to develop strategies to prevent bullying from occurring in the first place.