The anti-bullying amendments to the Fair Work Act 2009 – new protections for workers including volunteers

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The prevalence of bullying complaints by volunteers in the NFP sector was recently discussed at the national conference.

Commencing on 1 January 2014, the Fair Work Amendment Act 2013 introduces a new sphere of protection to workers experiencing bullying in the workplace. While the amendments operate within the framework of the Fair Work Act, the insertion of a much broader definition of "worker" than the ordinary meaning of "employee" used in the balance of the Act extends the scope of these provisions to the typical workforce of not-for-profit organisations such as volunteers, trainees and work experience students. The prevalence of bullying complaints by volunteers in the NFP sector was one of the topics discussed at the 15th National Conference on Volunteering, held in Adelaide last week.

The new jurisdiction represents the Government's response to the 2012 report of the House of Representatives Standing Committee on Education and Employment titled: 'Workplace Bullying "We just want it to stop". The report's principal recommendation was that there be a mechanism for workers to take bullying complaints to a national body for early intervention and resolution. Incidentally, the Report also found that the average cost to employers of resolving a formal claim of bullying is between $17,000 and $24,000.

These important new provisions are summarised below:

• From 1 January 2014, workers (who are, as mentioned, defined very broadly) employed by a constitutionally-covered business, who reasonably believe they have been bullied at work can apply to the Fair Work Commission (FWC) for an order stopping the bullying.
• The definition of "worker" is taken from the Work Health and Safety Act 2011 (Cth & State, excluding Vic and WA) which includes contractors, sub-contractors, outworkers, apprentices, trainees, volunteers, work experience students etc – a significant expansion of the meaning of 'employee' in the Fair Work Act.
• 'bullied at work' means where an individual or a group "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". This is consistent with the definition of bullying in the revised WHS Code of Practice. However, this means that low level workplace conflict that does not create a risk to health and safety will not be actionable.
• to avoid doubt, the Act specifies that "reasonable management action carried out in a reasonable manner" is not bullying. This provision is going to generate a lot of case law because so many bullying allegations arise in the context of performance management and the question of whether such management is reasonable (or unreasonable) is always going to be a matter over which the worker and employer differ.
• the right to complain is provided only to workers of a constitutionally-covered business – that means a trading or financial corporation or a foreign corporation (as well as the Commonwealth, a Commonwealth authority, a company incorporated in a Territory or a business conducted principally in a Commonwealth or Territory place). The right does not extend to workers of a partnership, sole trader or corporation with minimal trading activity – these workers are otherwise protected by the Fair Work Act. There could be an argument that certain Not-for-profit entities – depending on what they do - are not 'trading' corporations and so their workers will not have the right to complain.
• the words 'reasonably believe' appear to reflect an objective test but the Explanatory Memorandum refers to an employee "feeling victimised or humiliated" which arguably introduces a subjective element to the test.

FWC must commence dealing with applications within 14 days of receipt. That abbreviated time frame means that employers will need to be in a position to respond very promptly to the issues raised in a worker's application. FWC can deal with a bullying complaint by making virtually any order it considers appropriate except an award of monetary compensation.

Commentators have mixed views about whether this new jurisdiction will be heavily utilised by workers.

FWC anticipates receiving 3,500 applications in the first year and it has been given additional funding of $5.35 million a year to resource the jurisdiction.

Possible Coalition Government amendments

It is possible that the Coalition Government, under PM Abbott, will introduce a 'filtering' process whereby bullying complaints will need to be submitted to a regulatory agency (possibly the Fair Work Ombudsman) for vetting before they are allowed through to FWC. However, any Coalition amendments are unlikely to take effect before the anti-bullying laws commence on 1 January 2014.

Pro-active risk management

To minimise their exposure under the new law, employers and affected organisations should commence a thorough review of their anti-bullying and harassment policies, update them where necessary and ensure that their workers (including volunteers, trainees and work experience students) are instructed and trained in the application, operation and effect of the policies. Refresher training at regular intervals is recommended.

Any anti-bullying policy should provide a fair, efficient and confidential complaint mechanism and the consequences of non-compliance with the policy should be made clear to all "workers", taking into account the very broad definition of that term.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.