Under the Work Health and Safety Act 2011,
employers are obliged to take all reasonably practicable steps to manage health
and safety risks in their workplaces.
Bullying is one such health and safety risk, and failure to manage and
prevent bullying could constitute a breach of the Act and could have serious
repercussions, not just for those bullying or being bullied, but for your
organisation as a whole.
As from 1 January 2014, the Federal
Government will introduce new federal anti-bullying laws which are designed to
stop workplace bullying promptly.
However, the laws do not give bullying victims an entitlement to
monetary compensation or reinstatement of their position. From 1 January 2014, a worker who is being
‘bullied at work’ or believes they have been bullied at work will be able to
apply directly to the Commission for an order to stop the bullying.
These new laws will cover contractors,
subcontractors, outworkers, apprentices, trainees and students gaining work
experience as well as volunteers.
Under the new provisions, a worker can
bypass his or her employer and lodge a claim directly with the Commission. The
Commission is required to deal with an application within 14 days after the
application is made - the time limits will mean an employer will have very
little time to investigate, assess, and respond to a claim. Under the new laws,
employees can formally require the Fair Work Commission to order employers to
take action against bullying colleagues and managers. The FWC will have the
power to issue an order to the alleged bully or bullies, to put a stop to the
disputed behaviour.
With the introduction of these new laws,
it is essential that an organisation has an effective workplace bullying policy
which includes:
1. a definition of workplace bullying,
including a statement that workplace bullying is unlawful;
2. a complaints process; and
3. information about the consequences for
a worker who has engaged in workplace bullying.
Bullying is defined as follows:
A worker is bullied at work if an
individual or a group of 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.
It is irrelevant whether the individual or
individuals who are bullying intend to bully the victim.
It is important to note that bullying
involves repeated unreasonable behaviour. An isolated incident is insufficient.
Importantly, the definition has retained
the exemption for reasonable management action which is carried out in a
reasonable manner. (A performance
assessment/review that you disagree with will not constitute bullying!)
Bullying can include more obvious and
overt behaviours, such as:
•
intimidation
•
verbal abuse
•
assault
•
physical aggression/violent behaviour
•
spreading rumours about someone
•
constant name calling
•
practical jokes
•
harassment/sexual harassment,
•
trolling on social media.
But bullying can also include behaviours
such as:
•
constant unjustified criticism or
complaints
•
constant threats to sack or demote
•
excluding someone from workplace
activities
•
inconsistent and arbitrary enforcement of
rules
•
setting unreasonable timelines
•
deliberately changing work arrangements in
order to inconvenience someone
•
setting tasks that are unreasonable
•
excessive scrutiny of work performance
•
withholding information or tools required
to perform work, and
•
taking credit for another employee's work
and failing to acknowledge that employee.
Examples of the sorts of orders the
Commission may make include:
• regular monitoring of behaviours by
an employer;
• compliance with the employer’s
workplace bullying policy;
• provision of information by the
employer;
• additional training to employees;
and
• amendment of the employer’s
workplace bullying policy.
What will this mean for Employers?
It would be expected that employers'
processes for handling complaints about bullying will be in the spotlight.
Therefore, over the next few months until 1/1/2014, it will be important that
employers use the time remaining to review and improve their policies and
framework regarding bullying.
Businesses should ensure that performance
management and investigation processes are fair and reasonable.
They should have appropriate policies that
detail the action taken when an employee makes a grievance or complaint about
bullying behaviour, and appropriate mechanisms in place for addressing concerns
of workplace bullying. All employees
should have a copy of the policy, or at least know where and how to access the
policy.
In the event of an application to the FWC,
any workplace investigations conducted will be open to scrutiny. You must be
able to show that you have acted with fairness. Organisations may also need to
prove that they have given employees training or guidance in relation to their
policy, so all employees are aware of what they need to do if they think they
are being bullied.
No comments:
Post a Comment