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9 July 2013 Stop bullying orders - workplace bullying soon to become a more public ordeal

By Laura Sowden, Solicitor and Warwick Ryan, Partner


In Brief

Bullying has increasingly been recognised as a serious issue in the workplace, in education and in the online world. Recently the Victoria Supreme Court ordered an employer pay a bullied employee $600,000 following their inaction over her bullying claims. The case demonstrates the seriousness of bullying and how important it is for employers to be proactive.

Bullying has long been addressed in workplace policies, health and safety legislation and anti discrimination legislation. In view of the public concern about bullying the recently passed Fair Work Amendment Bill 2013 introduces a new concept; stop bullying orders, which will come into effect on 1 January 2014.  


Stop bullying orders

Stop bullying orders will make it possible for individuals to bring an application to the Fair Work Commission for an order to stop bullying behaviour. Specifically, the amendment enables a worker who reasonably believes they have been bullied to apply for the order.

The definition of a worker is broad and extends past that of just an employee. A worker includes an individual who performs duties for an organisation including employee, contractor, subcontractor, outworker, apprentice, trainee, work experience student or volunteer.

The Amendment defines bullying as when;

another individual or 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.

Once an application is made to the Fair Work Commission it must deal with that application within 14 days of receiving the application. This may involve three steps:

  1. informing itself of the matter;
  2. having a conciliation conference; and/or
  3. holding a hearing.

At this stage the Commission will only be able to make an order stopping someone, generally the alleged bully, from behaving a certain way. Such an order will be made if the Commission considers:

  • there has been bullying; and
  • there is a risk of it continuing.

The Commission will also take into account any investigation, being undertaken or concluded, and any dispute resolution procedures already utilised or open to the worker.

The effect of the stop bullying order

The effect of this legislation is supposedly to stop whatever bullying behavior may be occurring within a workplace. Given that most bullying claims often amount to no more than personality disputes between colleagues, we hold real concerns as to the effectiveness of this measure. However, the simple fact that such a claim is made in a public forum, rather than having been dealt with internally may be grounds for a claimant to allege inactivity on the part of the employer. Further, once a stop bullying order is made, a breach of such an order can also result in substantial fines.

Stop bullying orders may also be considered by health and safety authorities and possibly provide evidence of a breach of a health and safety act duty to provide a safe place and system of work. However, in reality this is far less common.

It is yet another level of complication and regulation being thrust upon employers and the cost of dealing with such a claim in a public forum is inevitably expensive in time and money. Accordingly, despite our reservations about the wisdom of this new legislation, employers would be wise to review their policies and workplace cultures to avoid being shamed by a stop bullying order in the New Year.

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This article is not legal advice and the views and comments are of a general nature only. This article is not to be relied upon in substitution for detailed legal advice.

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