Stop bul­ly­ing orders — work­place bul­ly­ing soon to become a more pub­lic ordeal

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.