The new year also brings with it new changes to the Fair Work Act 2009 (FW Act). Significantly for employees and employers, the changes to the FW Act introduces measures designed to address bullying in the workplace.
As part of a range of amendments under the Fair Work Amendment Bill 2013 (the Bill), the former government introduced legislative changes that allow a worker who has been bullied at work to apply to the Fair Work Commission (FWC) for an order to stop the bullying.
The term “bullied at work” is defined as persistent and repeated negative behaviour directed at an employee and that behaviour creates a risk to health and safety.
For the behaviour to be considered “bullying” it must be satisfy the three criteria:
• unreasonable and
• cause a risk to health and safety.
‘Repeated behaviour’ refers to the persistent nature of the behaviour and can refer to a range of behaviours over time and that ‘unreasonable behaviour’ is behaviour that a reasonable person, having regard to the circumstances may consider to be “unreasonable”. The test for unreasonableness is therefore an objective test.
Actions and behaviours that may be considered unreasonable and therefore constitute workplace bullying, could include setting unreasonable timeframes or changing work arrangements such as rosters or leave; unjustified criticism or complaints; or spreading misinformation of malicious rumours about a person; or behaviour that is victimising, humiliating, intimidating or threatening.
Importantly for employers, reasonable actions taken by management to address performance issues will not be considered bullying. The Explanatory Memorandum states that employers have rights and obligations to take appropriate management action and make appropriate management decisions. Employers will still to be able to make necessary decisions to respond to poor performance, take disciplinary action or direct and control the way work is carried out as long as such actions are carried out in a reasonable manner and do not leave the individual feeling victimised or humiliated.
The changes will also enable FWC to make orders to stop the bullying. Such actions may include contacting the employer or other parties to the application, conducting a conference or holding a formal hearing. In the course of dealing with a matter, the FWC may make a recommendation to the parties or express an opinion.
As an employer you are under an obligation to understand the new changes and what they mean for you and your employees. Now is the time consider whether your processes and policies up to date and whether you and your staff understand the changes and how they affect each of you and your business.
Mills Oakley Lawyers can help you understand the legislative changes and put in place the necessary processes and policies aimed at preventing, identifying and addressing incidences of bullying in the workplace.
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