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  • Writer's pictureCraig Sam

Fair Work and You

Updated: Feb 5, 2019

On 1 January 2014, changes were effected to the Fair Work Act. These changes include anti bullying measures. What does this mean for you as an employee, manager or employer?

Changes to the Fair Work Act means that a worker who has been ‘bullied at work’ can apply to the Commission for an order to stop the bullying.

To be eligible for these provisions you must be employed by a constitutionally covered business. This means all registered corporations ie Pty Ltd and Ltd businesses, the Commonwealth, Commonwealth authorities and its agencies, sole traders, partnerships and trustees in the ACT and NT and incorporated volunteer associations that have at least one employee.

You are not covered if you work in the Defence Force, some security agencies, some State public sector employees and unincorporated partnerships. If you find yourself in this position, your State WH & S legislation will cover you.

The Act has defined “bullied at work” through Section 789FD. This provides that a worker is “bullied at work” if an individual or group behaves repeatedly, in an unreasonable manner towards the worker and that behaviour creates a risk to health and safety.

The Act does not specify what “unreasonable behaviour” is. Safework Australia’s draft Code of Practice has defined unreasonable behaviour, using the ‘reasonable person’ test as meaning “behaviour that a reasonable person, having regard for the circumstances, would see as unreasonable, including behaviour that is victimising, humiliating, intimidating or threatening.”

Some people believe they are being bullied because they dislike what a Manager or co-worker has asked them to do, or they have been subject to managerial action. You are not being bullied if an action is reasonable managerial action conducted in a reasonable manner. For example, negative feedback, if carried out in a reasonable manner is not bullying. If, however, a manager stood by your desk and yelled that your work was substandard and this was a repeated action, this could be considered bullying.

The changes to the Fair Work Act also include family friendly provisions, where an employee can request a change in work arrangements, an employer can refuse a request on reasonable business grounds, including costliness, impracticality, significant loss in efficiency or productivity and significant negative impact on customer service. It is not considered bullying if you are refused flexible working arrangements on any of these grounds and the refusal is reasonable.

Safework Australia defines bullying as;

  • abusive, insulting or offensive language or comments unjustified criticism or complaints

  • continuously and deliberately excluding someone from workplace activities

  • withholding information that is vital for effective work performance

  • setting unreasonable timelines or constantly changing deadlines

  • setting tasks that are unreasonably below or beyond a person’s skill level

  • denying access to information, supervision, consultation or resources such that it has a detriment to the worker

  • spreading misinformation or malicious rumours

  • changing work arrangements, such as rosters and leave, to deliberately inconvenience a particular worker or workers

  • excessive scrutiny at work.

Single instance of insensitivity or rudeness do not constitute bullying but should be monitored as these have the potential to escalate.

If you are an employer or manager you should be proactive;

  • Ensure your policies are up to date

  • Ensure your staff are aware of their obligations. A 30 -40 minute training session should help. Bring copies of the policies, ensure everyone has them AND have your staff sign they have read and understood them.

  • If you received a complaint, document your actions – diary notes are better than computer – unless you can prove when you made the online entry. Or send yourself an email documenting what you have done.

  • Seek advice – from HR, or if you are a small business, from someone who is qualified to give advice such as your lawyer or even call the Fairwork hotline on 131394.

  • Conduct a thorough, fair and transparent investigation. If you do not have the capacity internally, seek a qualified, unbiased external investigator who has experience and knowledge in the resolution of workplace issues.

  • Keep notes and documents.

  • Ensure your actions are timely and appropriate.

For further information: Safe Work Australia Preventing and Responding to Workplace Bullying (Draft Code of Practice)

Australian Government Solicitor Express Law

Craig Sams (Wodi Wodi) is the Principal of Capital Workplace Investigations. He has had over 30 years experience as an investigator and educator. He can be contacted on 040249229 or 6231 0066.

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