On 1 January 2014, the Fair Work Act 2009 established a bullying jurisdiction for the Fair Work Commission. This means that an employee can seek an order from the Fair Work Commission to stop bullying in the workplace.
Making an application to the Commission for an order to stop bullying is a workplace right, protected under the general protections provisions of the Fair Work Act.
A person will be covered by the anti-bullying laws, and therefore eligible to make an application, if they:
- are a worker (as defined in the Work Health and Safety Act 2011 (Cth);
- are not a member of the Defence Force; and
- work in a constitutionally-covered business.
What is Workplace Bullying?
Bullying can take many forms. It can be subtle or covert to obvious or overt. It can be intentional or unintentional. It can occur at work in many different ways, such as face-to-face, by telephone, by email, by social media or outside the workplace.
A worker is “bullied at work” if:
- while the worker is at work, 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.
The bullying which is covered by the Fair Work Act is bullying which occurs “at work”. Bullying must occur while workers are performing work or are engaged in employer-authorised activities at the time the alleged bullying behaviour occurs, for example:
- at staff parties – which may well be held at a location other than the workplace itself; or
- during lunch breaks.
In that sense, being “at work” is not limited to the physical workplace, so that individuals who engage in unreasonable behaviour towards a worker need not be physically “at work” at the time they engage in that behaviour.
Repeated Unreasonable Behaviour
For unreasonable behaviour to constitute bullying, it must be “repeated”. This means that there needs to be more than one occurrence of unreasonable behaviour, but there is no specific number of incidents required. It is not necessary for the same unreasonable behaviour to be repeated — there could be a range of behaviours over time.
Risk to Health and Safety
The repeated unreasonable behaviour must also “create” a risk to health and safety, so that there must be a causal link between the behaviour and the risk to health and safety. It is not necessary that the repeated unreasonable behaviour is the only cause of the risk, but it must be a substantial cause.
What is Not Bullying?
There may be instances where a person feels that they have been treated improperly that will not necessarily constitute bullying. In a workplace, this includes:
- reasonable management action
- reasonable performance management
- reasonable disciplinary action
- a single act that is not of an extremely serious nature
- discrimination and harassment; and
- low level workplace conflict (eg differences of opinion and personality clashes).
Next month in this employment law series , we will consider the steps an employer should take when presented with an allegation of bullying in the workplace.
Should you have any queries in relation to Employment Law matters, please don’t hesitate to contact our office.
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