The Fair Work Act contains provisions that enable the Commission to deal with instances of bullying at work.
What is bullying at work?
Under the Fair Work Act, bullying at work is defined as repeated unreasonable behaviour towards a worker or a group of workers that creates a risk to health and safety. Reasonable management action carried out in a reasonable manner (including disciplinary action) is not bullying.
What does “repeated unreasonable behaviour” mean?
While there is no specific number of incidents required for a case to be classified as workplace bullying, there generally needs to be more than one incident. It is not necessary, however, that the same specific behaviour is repeated.
The Commission will apply an objective test in determining whether behaviour is unreasonable or not – that is, whether a reasonable person, having regard to the specific circumstances, would consider such behaviour as unreasonable. In the context of bullying, conduct such as shouting, mocking, social exclusion or singling-out an employee is often considered unreasonable behaviour. Bullying can often be difficult to identify.
Must there be damage to health and safety?
There must be a real risk to workers’ health and safety. There does not need to be actual damage.
Who can make a claim?
Workers can make an application to the Fair Work Commission for an Order to stop the bullying. The Work Health and Safety Act 2011 (Cth) defines workers to include the following:
- Contractors or subcontractors
- Employees of a contractor or subcontractor
- Employees of a labour hire company who has been assigned to work in the person’s business or undertaking
- Apprentices or trainees
- Students gaining work experience
- Volunteers or
- Person of a prescribed class
A worker must still be employed or working as one of the above for the claim to succeed. If the worker has been dismissed, then they have to make a different application, such as one for unfair dismissal.
What is the process for a claim for anti-bullying?
An anti-bullying application may be commenced in the Fair Work Commission by a person who believes that they have been subject to bullying.
The application normally names both the employer of the bullied person, and each of the individuals it alleges to have engaged in bullying behaviour. The law does not require that the bullies must have the same employer as the bullied person.
Once the application has been commenced, the Fair Work Commission will send copies to the employer, and to each of the named persons. The employer is required to provide a response, while the named persons may also do so.
The matter is then scheduled for a mediation conference. This conference, which is required to occur as soon as practicable, attempts to resolve the dispute by negotiation.
If the matter is not resolved by mediation, then it will be set down for hearing before a member of the Fair Work Commission. The parties will all be asked to prepare written statements and submissions.
Following the hearing, the member of the Fair Work Commission will determine if bullying occurred. If it did, they may make orders to stop the bullying.
They are not permitted to make an Order for payment of compensation.