Changes to Bullying Measures in the Fair Work Act - 1 Jan 2014

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.

Cyberbullying in the Workplace

According to Industrial Relations tribunal statistics in Australia, workplaces are experiencing increasing claims of bullying and cyberbullying, and the problems of cyber-bullying are only expected to increase over time.

Many businesses and companies would typically have current workplace policies for internet and email usage, harassment, racism, and discrimination, however, few would have a specific Bullying and Cyber-bullying policy in place.

Employers have a duty of care under the Workplace Health and Safety Act ‘take all reasonably practicable steps’ to provide a working environment that is healthy, safe and without risks to the health of employees, contractors or other persons in or near the workplace. Australian courts have demonstrated that an employer’s common law duty of care to employees encompasses not just their physical well being but extends to their psychological mental and emotional well being as well.

Cyber-Bullying is a relatively recent workplace issue, and is on the increase with the increased prevalence of take-home laptops and smart phones, making cyber-bullying a problem outside of the physical work environment and traditional working hours.

Cyber bullying is often defined as a form of covert bullying that is carried out through the use of technology. Examples of what constitutes cyberbullying include :

• Offensive, malicious or intimidating emails or SMS communications
• Email threats, malicious or threatening comments
• Posting blogs and comments on social networking sites
• Spreading lies, malicious gossip or falsely discrediting others on blogs or social networking sites, or via email to other employees
• Sharing a person’s private data online
• Sharing embarrassing, offensive or manipulated images or videos of an individual
• Screen savers or desktop backgrounds featuring offensive content.
• On Line Harassment & Cyberstalking: repeatedly sending offensive messages and/or the posting of racist, nasty and hurtful comments using electronic means;
• Identity theft
• Exclusion, deliberately excluding another from an online group, mailing list or electronic conversation.

The nature of the internet is that it is not possible to guarantee that any content published or transmitted can be erased, removed or corrected. Cyberbullying therefore has the potential to be more aggressive and escalate considerably faster than traditional methods of bullying because of the immediacy of the medium. It is important that employers recognise that addressing cyberbullying is essential for creating a safe and productive working environment.

Cyberbullying can seriously affect morale, cause undue fear and stress, emotional exhaustion and serious health and psychological issues with employees. This can result in productivity drops, absenteeism rises, staff turnover increases, morale slumps and difficulty retaining staff in an unhealthy work environment. Cyber-bullying is a serious matter for businesses because its effects on the psychological health of victims can be far reaching, lasting and more damaging that from the traditional physical bully.

Employers who recognise the significance of cyberbullying and take it seriously will be in a much better position to avoid the negative consequences and potential legal implications of incidents. Being proactive and introducing or amending workplace policies that are specific to Cyberbullying is highly recommended.  It is recognised that the best way to prevent cyberbullying is through policy, education and training of all levels of employees.  Your policy should cover or include areas such as:

• acceptable use of technology,
• how to deal with bullying in the workplace,
• give concrete examples of what constitutes cyberbullying,
• remind staff that anything posted on the internet is out of their control and is potentially there forever
• encourage staff to draft sensitive emails and re-read them a few hours later before sending them.
• Develop a reporting and investigation process for bullying and cyber-bullying- any reports of bullying made by employees - regardless of how incidental they may appear initially - must be investigated
• Set out the consequences for engaging in bullying or cyber-bullying behaviour.

To help minimize your risk as an employer, or to find out more about Cyberbullying, contact Annette at End2End Business Solutions on (02) 8977 4002 for advice on establishing workplace policies for your business.

Bullying and Harassment

Many workers will these days experience workplace harassment – behaviours such as:

• verbal abuse
• assault
• spreading rumours about someone
• constant name calling
• practical jokes
• sexual harassment

Bullying and harassment can also be more subtle and 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
• taking credit for another employees work and failing to acknowledge that employee.

 Bullying is generally defined as repeated unreasonable behaviour directed towards a worker or group of workers that creates a risk to health and safety. It is irrelevant whether the person bullying and harassing you intended to do so.

Studies indicate that less than one in 10 victims of workplace harassment speak or confront the person inflicting the unwanted behaviour to simply say that they don’t like the behaviour and request that it stops.

Workplace bullying can be toxic to a business causing high staff turnover, absenteeism, low morale and re­duced productivity. It also exposes an employer to wider finan­cial burdens including the possibili­ty of workers’ compensation claims, legal action or substantial fines for breaches of workplace health and safety legislative obligations.

Workplace health and safety law states that an employer has an obligation to, as far as practicable, provide employees with a working environment that is safe and free from risks to the worker’s health.  Workplace bullying and harassment is not consistent with a safe working environment or a working environment that is free from risk.

 If you are aware of bullying in your workplace, or are a victim of bullying or harassment, there are several strategies recommended by experts to deal with the workplace harassment and bullying behaviour.

-Speak to the Bully and advise that the Behaviour is Unwelcome

In the first instance, it is always suggested that you should first try to address the behaviour with the bully directly, particularly if it's a more subtle form of bullying such snide, inappropriate or sarcastic comments; let them know that it is not professional, is unwelcome and not appreciated.  

However, if the bullying is more serious or the bully has ignored previous requests to cease, then it is time to discuss/report the matter with a line manager.

-Report the Misconduct

A victim of workplace bullying or harassment should report the misconduct to their supervisor and/or to the human resources department/representative, if available in your workplace. It is  better if the complaint is in writing as this will be easier to use as evidence should the need arise.  When writing a complaint stick to the key points and keep the complaint concise.  Ten well thought out points can often be more effective that ten pages of writing.

-Document the Behaviour

From the start of the unwelcome behaviour, or as soon as possible afterwards, the victim should document the behaviour, noting the date, time and place it occurred, and if anyone else was present as a witness, along with a transcript of the interaction. If matters continue to escalate, written documentation will be the most important thing the employee has to protect them self and their job.

-Be Informed

Become familiar with your Employer’s workplace policies and your own Employment Contract. Find out if your company has official HR and complaint policies, and familiarize yourself with these.

-Take Care of Your Health and Seek Medical Attention

Should the matter proceed as far as the Courts, you may need to demonstrate the effects of the alleged bullying, whether it be emotional damage or physical manifestations of stress.  The employee can obtain medical attention as evidence of this.

 If you are an employer, to prevent bullying and protect yourself and your staff, there are several recommended actions.  Where practicable, you should seek to implement measures which reduce or eliminate the possibility of workplace bullying and associated harm, and take proac­tive approaches to reduce the risk of bullying. Possible action you could take would include pre-emptive assessments of possible bullying risk factors in the work­place, development of a formal workplace bullying policy and for­mal procedures to address a work­place bullying complaint. 

Your response to bullying

In the event of a claim of bullying by a co-worker, an employer should in the first instance seek to act accord­ing to an established company bully­ing or Workplace Health and Safe­ty procedure. If no formal procedure is developed, state legislation may re­quire the employer follow a default procedure as identified in state occupational health and safety legisla­tion.

There are basic principles an employer should seek to adhere to, being, firstly that each complaint should be taken seriously and action should be prompt. Sec­ondly the employer should approach the situation with neutrality, provide support and ensure fairness of process for all parties involved. Doc­umentation and communication with parties is also essential, howev­er an employer should ensure confi­dentiality, especially where request­ed by the accuser.

To minimize your risk as an employer, you should consider developing proactive bullying and harassment policies that will ensure that your workforce is safe, engaged and productive. Contact Annette at End2End Business Solutions on (02) 8977 4002 for advice on establishing workplace policies for your business.