A changing workplace culture has led to changes to bullying legislation
By <a href="mailto:ahickland@bauertrader.com.au”>Amie Hickland | September 26, 2013
Bullying may be a term associated largely with the playground, but a changing culture in the workforce has meant a change in legislation.
Recent changes now mean workers will be able to lay complaints with the Fair Work Commission (FWC).
Earlier this year, the former Workplace Minister Bill Shorten announced the Labor Government intended to make amendments to workplace legislation to enable the FWC to deal with complaints of bullying in the workplace.
Those amendments were included in the Fair Work Amendment Act 2013 which was passed in June this year.
In effect, this has provided a whole new avenue to deal with workplace bullying complaints.
Under the new anti-bullying measures – which take effect on January 1, 2014 – workers who believe they are being bullied will be able to make an application to the FWC to address their complaints.
Tim Capelin, Partner at Piper Alderman, says this is a significant step because this is the first time that the FWC has been given jurisdiction to deal with bullying itself.
He says the changes will have a number of effects on the bus and coach industry.
“Firstly, from a compliance and cost perspective, it will require companies to be more vigilant with their education and training of their workforce and will require the development and implementation of policies on bullying,” he says.
Companies will be required to train their management on what constitutes bullying and how reports of bullying should be dealt with within the organisation.
“Secondly, we have already seen an increase in disingenuous claims, particularly in circumstances where an employee is subject to reasonable performance management.”
He says this is an “unfortunate by-product” of the extensive education and awareness campaigns about bullying which have provided disgruntled employees with an alternative avenue for either delaying further performance management or other disciplinary process.
“While we haven’t seen the new anti-bullying measures in action we think it’s reasonable to believe that they may be exploited inappropriately,” he says.
“Employers should be sufficiently aware of what is required to comply with the laws so that they don’t unintentionally make a non-claim into a claim.”
While Capelin believes there is no perceived culture of bullying in the bus industry, he says there is a perception that bullying can occur in any industry – irrespective of its size or the work that is undertaken.
“For instance, recently bullying was found to have occurred in a bookstore with only two employees and the case law has shown that the industries in which bullying has occurred have been many and varied.”
THE CHANGES
Capelin says there are a number of possible views on why the changes were needed.
“In a practical sense, the new legislation may funnel people who believe they are being bullied through this new avenue however time will tell whether this avenue will be effective or counter-productive,” he says.
“From an academic point of view there has been growing discourse about the effects of bullying in the workplace, and the impact that such behaviour has on the individual and the business in which they are employed.”
He says the changes could be seen as an attempt to rationalise the approach to workplace bullying because claims of bullying have previously been addressed through personal injury cases, work health and safety investigations and prosecutions, or as part of claims of discrimination, adverse action or unfair dismissal proceedings.
“Several studies have shown that workplace bullying can have far reaching effects and the new anti-bullying measures might complement existing remedies by providing for a potentially quick resolution of a bullying complaint which would endeavour to keep the employment relationship intact,” he says.
“We will have to wait and see whether this will be the outcome of the new measure or whether it will encourage a multitude of claims ranging from genuine grievances, to disingenuous claims and claims commenced in ignorance of what bullying actually is.”
Changes to the legislation include a timeframe in which the FWC must start dealing with the application within 14 days.
If the FWC determines that a worker has been bullied at work and that there is a risk that the worker will continue to be bullied at work, it has broad powers to make any order appropriate in the circumstances – except anything monetary.
However, failure to comply with orders made can result in fines of up to $10,200 for an individual and $51,000 for a corporation.
Capelin says Piper Alderman’s role in the changes has been to liaise with clients and make them aware of these changes and what it will mean for their businesses.
He says workplace policies on bullying have and will continue to play a significant role in this area so they have worked with clients to update bullying policies.
“We have also provided education and training programs to enable our clients to effectively identify and manage complaints of bullying in the workplace, particularly focussing on what is and is not bullying and also advise on appropriate processes for investigation and complaints handling,” he says.
“It has been our aim to make our clients aware of the ambit of their duties in this area, in recognising both legitimate and frivolous claims and responding accordingly to save them both time and money.”