On 27th June 2013, Parliament passed a bill to introduce the Fair Work Amendment Act 2013 (Amendment Act). The Amendment Act provides for a number of amendments to the Fair Work Act 2009 (Cth) including changes to parental leave, special maternity leave, rights to flexible working arrangements, consultation clauses in Modern Awards and Enterprise Agreements, Right of Entry conditions and the introduction of anti-bullying provisions. The changes under the Amendment Act will have significant implications for employers, particularly in regards to anti-bullying jurisdiction that will rest with the Fair Work Commission (FWC). This article focuses on the anti-bullying provisions and what you should be doing in your workplace in preparation.

A summary of the anti-bullying amendment is provided below.

From 1st January 2014, a worker (i.e. an employee, a contractor, a subcontractor, an outworker, an apprentice, a trainee, a student gaining work experience or a volunteer) who reasonably believes they have been bullied at work may make an application to FWC for an order to stop the bullying. The Amendment Act does not require a worker to attempt to resolve the workplace bullying internally before seeking an order from the FWC.

Under the terms of the Amendment Act, bullying at work occurs if an individual, or a group of individuals repeatedly behaves unreasonably toward the worker and the behaviour creates a risk to the health and safety of the worker. This bullying definition reflects the recommended definition contained in the Report on Workplace Bullying: “We just want it to stop” tabled by the House of Representatives Standing Committee in late 2012. It also reflects the bullying definition by Safe Work Australia in their draft Code of Practice “Preventing and Responding to Workplace Bullying”.

The Amendment Act does not define unreasonable yet it does identify that reasonable management action carried out in a reasonable manner does not constitute workplace bullying. Unreasonable behaviour is defined however within the Safe Work Australia draft Code of Practice to include behaviour that is victimising, humiliating, intimidating or threatening. More detailed examples of unreasonable behaviours are included in both the Standing Committee Report and the draft Code of Practice.

Following the receipt of an application, the Amendment Act requires the FWC to commence dealing with the application within 14 days. As the Fair Work Act provides the FWC with the flexibility to inform itself in relation to any matter before it in such manner as it considers appropriate, the FWC when considering an anti-bullying application may contact the employer or other parties to the application, conduct a conference, or hold a hearing and during this process may make recommendation(s) to the parties or express an opinion.

If, following this process, the FWC is satisfied that the worker has been bullied at work and that there is a risk that the worker will continue to be bullied, the FWC may make any order it considers appropriate (with the exception of an order requiring payment of a pecuniary amount) to prevent the worker from being bullied at work by the individual or group. The following are examples of orders the FWC may make requiring:• the individual or group of individuals to stop the specified behaviour;• regular monitoring of behaviours by an employer;• compliance with an employer's workplace bullying policy;• the provision of information and additional support and training to workers; and• review of the employer's workplace bullying policy.

Newsletter – August 2013

Offices: Level 2, 11 Lang Parade Tel: + 61 (0) 7 3864 0500MILTON QLD 4064 Fax: + 61 (0) 7 3864 0599

Email: info@confiance.com.au Website: www.confiance.com.au

Bullies Beware

Newsletter – August 2013

Offices: Level 2, 11 Lang Parade Tel: + 61 (0) 7 3864 0500MILTON QLD 4064 Fax: + 61 (0) 7 3864 0599

Email: info@confiance.com.au Website: www.confiance.com.au

The Amendment Act also provides for civil remedies if an order to stop bullying is contravened. Breaches of orders to stop bullying will expose the offender to a pecuniary penalty.

It is expected that the number of workplace bullying claims will increase under the new legislation with the FWC preparing for an estimated 3500 claims per year.

Now is the time you should be preparing for the Anti-Bullying laws commencing in 2014 by ensuring:• your organisation has an anti-bullying policy in the workplace or review your existing

EEO/Harassment policy and if necessary, update the policy to include provisions for bullying at work;

• procedures are in place to enable a quick response to bullying complaints and if applicable, investigations undertaken;

• the policy and procedures are understood by all of your managers and employees and conduct appropriate training on workplace bullying;

• your managers are adequately trained to conduct performance management and keep accurate records;

• timely investigations are undertaken, in sufficient detail and by persons appropriately trained in investigations;

• at the end of an investigation appropriate outcomes are implemented.

This is not just about a change in legislation. This is about what is acceptable and unacceptable in our industry. Prevention is better than the cure. Although this legislation gives people a quicker way to stop bullying, it is our responsibility as leaders of our organisations to prevent the problem occurring in the first place; to make sure employees are treated respectfully; to make sure supervisors and managers know the difference between what is reasonable management practice and bullying! It always comes back to the same thing, doesn’t it? Clear responsible leadership.

Written by Jo McCreanor, Senior People Management Consultant.