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Work Health and Safety Blog

There's so much happening in the world of health & safety. Changes in legislation and requirements, changes in best practice, changes in ... you name it. Here's my take on making it simple. Simply Genius WHS - stop guessing... manage with confidence.

New workplace bullying laws and performance management

Maralyn Kastel - Wednesday, August 21, 2013

On 1 January 2014, new workplace bullying laws will be a new part of the Fair Work Act 2009 (Cth). These laws will enable workers to apply to the Fair Work Commission, Australia's industrial tribunal, alleging that they have been bullied in the workplace.

It has been predicted by the General Manager of the Fair Work Commission that there may be up to 3500 applications per year to under these provisions. Personally, I believe that this is a gross under-estimation.

The current state of play
At present, there is no Australian legislation that specifically prohibits workplace bullying. Depending on the type of alleged workplace bullying, workers have to rely on laws such as health and safety, workers' compensation, anti-discrimination and the general protection provisions of the Fair Work Act 2009 (Cth), as well as common law claims.

Amendment to the Fair Work Act 2009 (Cth)
The new amendment to Fair Work Act under the topic of "Workers Bullied at Work" will not be limited to employees. It will cover all "workers" as defined in the Work Health and Safety Act. This includes contractors, subcontractors, outworkers, apprentices, trainees and students gaining work experience as well as volunteers.

Under the new laws, a worker is bullied at work if an individual or a group of individuals repeatedly behaves unreasonably towards an individual worker, or a group of workers.

A worker who makes an application to the Commission can also take action under workplace health and safety legislation. There is no income cap restricting those who can apply for an order.

What the Fair Work Commission must do
The Fair Work Commission must start to deal with an application within 14 days after the application is made. No explanation is given whether this includes considering the application or simply listing the matter for hearing or conference. 

Orders made against an individual, worker or the employer cannot include financial penalties, reinstatement or compensation.

The challenge for employers
You’ll be pleased to know that “Reasonable management action carried out in a reasonable manner” does not constitute bullying. However, here’s the catch, there is no definition of what is "reasonable management action carried out in a “reasonable manner."

I expect that workers will allege that performance management by the employer amounts to bullying conduct and by default management was not reasonable nor was it carried out in a reasonable manner.

It will be responsibility of the employer to provide evidence to the Fair Work Commission that the performance management is "reasonable management action" and that it was carried out in a “reasonable manner."

So, whilst the “reverse onus of proof” was removed from the new Work Health & Safety legislation, it has been resurrected in a different format covering the issue of bullying in the workplace in the Fair Work Act.

So the big question is this: Why is the employer guilty until proven innocent under this amendment to the Fair Work Act?”

The Coalition policy
Under a Coalition policy the proposed workplace bullying laws will be maintained in the Fair Work Act 2009 (Cth) with an amendment that will require a worker to seek the assistance of an independent State regulator (ie WorkCover in NSW) before the worker can make the application to the Fair Work Commission.

This may reduce the number of potentially vexatious claims, although I have some doubts about this.

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