With only 4 solid working weeks remaining, 2014 is already upon us.  These coming weeks will be swallowed up by end of year functions and completing those jobs that were due back in July.  While we admit we are adding another inconvenient issue to the plate, this alert is essential reading for all employers.

This is because 1 January 2014 will mark the commencement of the former Labor government’s amendments to the Fair Work Act relating to workplace bullying that were enacted earlier in the year.  This complex issue will soon be regulated by the federal workplace relations system for the very first time.

Workplace bullying will have its own concise statutory definition:

A worker is bullied at work if, while the worker is at work in a constitutionally covered business, an individual or group or 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.

However there is an important carve-out to this definition, where ‘reasonable management action carried out in a reasonable manner’ will not be considered workplace bullying.  While we believe this definition will provide some clarity on what constitutes bullying in the workplace, the subject is still widely misunderstood and measures to improve public awareness would be beneficial.  

The Fair Work Commission (FWC) has been charged with arbitrating workplace bullying complaints.  Under the Act, the FWC can make a range of orders and directions to the parties involved, including ‘stop-orders’ to prevent the bullying continuing or directing any of the parties to undertake training.  Importantly, it has no power to order parties to pay any monetary compensation.

So how will it practically play out from 1 January?

Employees who believe they are being bullied in the workplace will be able to make a complaint to the FWC.  Upon receiving an employee’s application, the FWC is required to “start to deal with an application….within 14 days after the application is made”.  

While this may seem like a quick turn-around time, the ways in which the FWC can “deal with an application” are quite broad.  For instance, it can seek further information or documents from the parties, convene an initial conference (by phone or in person) or conduct a formal hearing of the matter.

We believe that the FWC will first enquire whether the employee has been through his or her employer’s grievance procedure (if one exists) and it will direct the employee to comply with that procedure first before the matter progresses further in the FWC.  Thereafter, if the dispute remains unresolved, we expect the matter will then be listed for a mediation-style conference, with the minority of matters eventually being determined at a formal hearing.           

The introduction of this new bullying regime need not create operational nightmares for employers, so long as they have ensured the three simple measures below have been implemented:        

1. Update or implement workplace policies on bullying and harassment
2. Ensure dispute resolution and grievance procedures are clear and adaptable
3. Develop clear and transparent performance requirements and management processes

We can assist employers to implement or improve their existing policies and procedures by the end of the year to deal with the new workplace bullying measures that will commence on 1 January 2014.

Download a PDF version of this article: Workplace Bullying - 3 Simple Way to Prepare for the New Regime

For further information on the new workplace bullying regime please contact:
Rohan Kux
Senior Associate
03 9611 0107
rkux@sladen.com.au