On 1 January 2014, amendments to the Fair Work Act 2009 (Cth) introduced new anti-bullying workplace laws throughout Australia. Workers are now able to commence civil proceedings before the Fair Work Commission (FWC), regardless of whether alternative avenues already exist. The amendments form part of the Government’s response to the House of Representatives Standing Committee on Education and Employment Inquiry report Workplace Bullying ―We just want it to stop, which recommended that the Government provide ‘an individual right of recourse for persons who are bullied at work to help resolve the matter quickly and inexpensively’. Previously, remedies for workplace bullying were found across numerous areas of law, including Work, Health and Safety law, criminal law and anti-discrimination law.
Under the new legislation, a worker who ‘reasonably believes’ that he or she has been bullied at work may apply to the FWC for relief. Employees, contractors, apprentices, work experience students and volunteers all fall within the definition of a ‘worker’ for the purposes of the legislation.
Pursuant to section 789FD(1), a worker is ‘bullied at work’ if an individual or group of individuals repeatedly behaves unreasonably towards them and that behaviour creates a risk to health and safety. While ‘unreasonable behaviour’ is not defined in the Act, the Explanatory Memorandum in the legislation indicates that this behaviour would include (but is not limited to) behaviour that is victimising, humiliating, intimidating or threatening.
Prior to making an order, the FWC must be satisfied that the alleged bullying has actually occurred and that there is a risk that the worker will continue to be bullied at work. The focus when making an order is on resolving any conflict and allowing normal working relationships to resume; as such, the FWC cannot make an order requiring compensation or the payment of a pecuniary amount. Examples of orders that the FWC may make include an order requiring the individual or group of individuals to discontinue the behaviour, regular monitoring of behaviours by an employee and compliance with an employer’s workplace bullying policy.