new year, new bullying laws: is your business prepared?

New Bullying Laws

December 2013 By Andrew Bland The information in this presentation is general in nature and does not constitute formal legal advice.

www.blandslaw.com.au

1. Introduction 2. Bullying - the current landscape 3. Who is covered by new jurisdiction? 4. Bullying – definition 5. Reasonable management action 6. FWC process 7. FWC orders 8. Penalties 9. Practical steps for employers 10. Commentary


From 1 January 2014, the Fair Work Act

will be amended to include a new bullying

jurisdiction

Large number of claims expected

Employers who are prepared should not

be concerned by the changes

Be prepared - make sure you understand

the new laws and that your policies are

legally compliant.


Bullying raised indirectly through a number of different claims: 1. Unfair dismissal

2. General Protections claims (adverse action)

3. Discrimination

4. Injury and disability

5. Termination and temporary absence

6. Workers compensation and stress-related claims


New claim under the Fair Work Act

A worker who is bullied at work can apply

to the FWC for orders to stop the bullying

Need to consider definition, coverage,

relevant matters and process


‘Worker’ • Includes contractors; sub contractors; apprentices;

volunteers - wide range.

• Are they connected to, or do they work for, a ‘constitutionally covered’ business

‘Constitutionally covered business’ • Corporations – ie foreign; and trading or financial

• Commonwealth and Territory employees

• Unincorporated businesses excluded eg sole traders; partnerships


‘Bullied at work’ • Definition included in the amendments

• If an individual or group of individuals repeatedly

behaves unreasonably towards the worker and

that behaviour creates a risk to health and safety.

Two key elements: • Repeated and unreasonable behaviour

• That creates a risk


Specific exclusion for reasonable

management action

Not a blanket exception for all

management action

Note the requirement that the action must

be ‘carried out in a reasonable manner’

Intended operation is fair and consistent

performance management that is justified

in the circumstances.


FWC must deal with an application within

14 days. • some action - may not be a hearing or conference

in that time frame.

FWC will check application is complete

and serve it on other parties.

Assessment process

Mediation or hearing

Appeal option


Wide power to make orders to stop the

bullying

Must first be satisfied that: • Worker has been bullied; and

• That there is a risk the bullying will continue.

Orders must be non-pecuniary (ie no orders

for compensation or fines).

Orders may be directed at individuals to stop

certain behaviour; to monitor behaviour;

policy compliance and policy review.


Civil penalty provisions

Sanctions for breaching an FWC order

Fines: • Individuals up to $10,200

• Corporations up to $51,000


Review workplace policies • Clear statement that prohibits bullying

• Define bullying

• Internal complaints handling process Note this is a relevant consideration for FWC

Consider workplace training that includes

bullying

Workplace health check: • Is there a workplace culture/ behaviour problem?

• Does management model good behaviour?


Review and update policy suite

How are employees made aware of policies? • Consider workplace policy training/ implementation

Performance reviews

Does management model best practice?

If necessary, follow a robust performance

management process

If unsure, seek assistance.


Applications expected to increase from Jan

2014

FWC has released an Anti-Bullying

Benchbook

If you are prepared and across the

changes, should be minimal impact

If you are aware of workplace issues now,

act promptly and get advice early


Private company owned by Andrew Bland

Established in 2003 and located in North

Ryde, NSW.

Core expertise: • Industrial relations / Employment law

Additional expertise: • All aspects of general commercial law

• Social media law.


For more information, please contact:

• Andrew Bland

• Principal, BlandsLaw

• [email protected]

• T: (02) 9805 5600


new year, new bullying laws: is your business prepared?

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