Recent data obtained from Safe Work Australia has revealed that the number of serious workplace injuries related to bullying and harassment has nearly doubled in Australia over the past decade.
Preventing workplace bullying and harassment amongst staff members should always be an issue at the forefront of every employer’s mind. The onerous obligations to protect the safety and wellbeing of staff together with the costly consequences of falling short of those obligations provide strong catalysts for this position. Not only does such bullying behaviour create a risk to worker health and safety, potentially exposing the school to legal liability and workers’ compensation claims, but it can also be cause reputational damage and create a poor culture whereby staff become dissatisfied and unproductive.
National Anti-Bullying Laws
The national workplace bulling laws were introduced in January 2014. The anti-bullying provisions of the Fair Work Act 2009 (Cth) (the FW Act) allow a worker who has been bullied at work to apply to the Fair Work Commission (the FWC) for an order to stop the bullying. The relevant provisions give the FWC power to make orders against a workplace to stop bullying and to implement practices and procedures that prevent a worker from being bullied at work.
Stop bullying orders are commonly sought in circumstances where the relevant staff member (victim) is still employed and wants to remain at work. This is because the FWC can only make such an order where there is a risk that the bullying will continue.
Who does the anti-bullying regime protect?
A worker who reasonably believes that he or she has been bullied at work may apply to the FWC for an order to stop bullying at work. The Fair Work Act definition of a worker is very broad and includes an individual who performs work in any capacity for the relevant organisation. Accordingly, the application of the provisions are broad and an application can be made against an employer by an employee, a contractor, a subcontractor, an outworker, an apprentice, a trainee, a student gaining work experience or a volunteer.
What is bullying?
It is important to know that whilst reasonable management action does not constitute bullying, bullying is broadly defined and can capture a range of conduct provided that the conduct in question is repeated, unreasonable, directed at a worker (or group of workers) and creates a risk to health and safety.
Common examples of bullying behaviour include:
• Aggressive or intimidating behaviour;
• Belittling or humiliating comments;
• Spreading malicious rumours;
• Teasing, practical jokes or ‘initiation ceremonies’;
• Exclusion from work-related events;
• Unreasonable work expectations, including too much or too little work, or work below or beyond a worker’s skill level;
• Displaying offensive material; and
• Pressure to behaviour in an inappropriate manner.
What orders can the FWC make?
Where bullying has been found to have occurred, the FWC has extensive powers and broad discretion to make an order to stop bullying. If the FWC is satisfied that the worker has been bullied at work and there is a risk that the worker will continue to be bullied at work, then the FWC may make any order it considers appropriate (other than an order requiring payment of a pecuniary amount) to prevent the worker from being bullied at work, even if that order would be inconvenient or unsuitable to the employer. For example, the FWC may order remedies which involve substantial business costs (e.g. orders to establish anti-bullying policies, procedures and training) or other measures that are logistically difficult for employers (e.g. orders for staff redeployment or no contact orders between relevant parties).
Implications
Stop bullying orders can be very expensive for employers, both from a financial perspective and from a cultural and reputational perspective. Most if not all preventative orders will result in some cost to the school, be it, the costs of establishing and implementing appropriate policies, procedures and training or the increased costs of higher staff turnover and mending cultural deficiencies. Also, if a stop bulling order has been made and a person or employer fails to comply with that order, the person or employer may be exposed to financial penalties.
Accordingly, employers should ensure that they take an active approach to matters of bullying and harassment. Appropriate and up-to-date bullying and harassment policies, procedures and training which reflect the latest case law should be the norm. Neglecting the issue increases the risk and costs of other adverse consequences.
