On 1 January this Year, a set of little-known but potentially significant new workplace regulations came into effect, aimed at addressing bullying at work.
Within two weeks, about 30 complaints had been made and more than 3000 more are expected by the end of the year.
Under the new provisions, any worker who is being bullied at work can apply to the fair Work Commission (FWC) for an order to stop the bullying.
Given the broad scope of the provisions – a ‘worker’ can include subcontractors, volunteers, interns and others – every manager in the country needs to be up to speed on them.
Push comes to shove
Sparke Helmore Lawyers Partner David Davies says this broadness means business needs to pay attention.
A wide range of behaviours can constitute bullying under this definition, including yelling or belittling the worker, excluding the worker from work events, spreading rumours and imposing unreasonable expectations or deadlines,” he says.
“Reasonable management action, carried out in a reasonable manner is specifically excluded from the definition of bullying, which will likely include appraisals of the worker’s performance, disciplinary action, demotion or redeployment and reclassification of the worker’s employment position.”
Davies says the Commission is aware of the perils of setting too low a bar for what constitutes bullying.
In delivering a recent judgment, fair Work Commissioner Danny Cloghan explicitly referred to the need to guard against fostering workplaces of “excessive sensitivity to every misplaced word”.
“The workplace comprises of persons of different ages, workplace experiences and personalities – not divine angels,” he says.
Davies says he expects the FWC will expect incidents to be sufficiently serious before they constitute bullying.
“Further, the statutory definition of bullying indicates that the behaviour must be repeated in nature, which may exclude one-off outbursts or incidents, regardless of their seriousness,” he says.
“For an order to be made, the FWC must also be satisfied that there is a risk of the bullying behaviour continuing.”
The FWC is empowered to conduct investigations, require documents to be provided and suggest resolution options.
It cannot levy financial penalties but can make binding orders.
So what can businesses do to help ensure their ranks remain free from bullies?
Davies says apart from fostering a positive workplace culture, businesses need to implement and promote an anti- bullying policy.
This includes providing workers with relevant information, training and supervision.
“Many employers already do this well to combat overt and obvious poor behaviour like sexual harassment or physical contact but bullying can be more covert or subtle,” he says, as well as recommending the establishment of clear procedures for dealing with complaints before any occur.
“This will save setting up procedures on the run. Your procedures can attach useful precedents such as a draft investigation report, a draft statement and a guideline to writing allegations,” he says.
Davies adds that is essential to investigate complaints promptly and thoroughly, with sensible documentation.
“Any perception of tardiness or incompetence on an employer’s part may prompt the FWC to make an order against the employer,” he says.
“The often-serious impact of bullying conduct on victims and the conduct’s potential to be ingrained in the work culture complicate the risk and compound the difficulty of complying with any order made by the FWC.”