The most significant change introduced under the Fair Work Amendment Act 2013 is the establishment of the anti-bullying jurisdiction within the Fair Work Commission (FWC) with effect from 1 January 2014.
Previously complaints of bullying were dealt with under the workplace health and safety legislation by making a complaint to the relevant government department, which is then investigated like any other safety risk in the workplace. Claims for compensation due to illness or injury resulting from bullying are able to made under workers compensation legislation. Discrimination tribunals and adverse action claims also cover some bullying-related type claims. This latest amendment to the Fair Work Act creates a whole new avenue for employees to take their claims of bullying.
This change allows a worker who is bullied at work to apply to the FWC for an order to stop the bullying.
- orders requiring an individual or group to stop bullying behaviour, or
- requiring an employer to implement anti-bullying policies and training.
Importantly, orders for compensation or reinstatement are not available.
Significantly, is excludes workers of the following:
- unincorporated businesses such as sole traders and partnerships;
- State public service departments and agencies, including in Victoria;
- certain State government business enterprises and entities (unless they can be characterised as constitutional corporations).
The Federal Budget allocated a significant amount of resources to deal with expected number of bullying disputes to be lodged with the FWC. Therefore, all employers should ensure that:
- They have sound policies and procedures in place around bullying, complaint handling, and be prepared to defend and mediate bullying claims in the FWC.
- All managers, supervisors and employees (and contractors where applicable) are effectively trained around the policies and procedures, including how to proactively identify and eliminate bullying from the workplace, and how to make and manage complaints of bullying.