New Bullying Laws Are Unnecessary Interference In Australian Businesses

25th November 2013

The new Australian Government as expected, will retain the essential features of the national system of workplace relation regulation under the Fair Work Act 2009 (the Act). Its plans to reform some of the more problematic areas over the next three years are modest. However, it is alarming that it seems content to allow further regulation planned by the previous government to proceed on 1 January 2014. The additional regulation impose unnecessary burdens upon employers and add to the inflexibility of the system. Rather than addressing the challenge of improving productivity, it seems the Government is content to continue the pattern of regulation for the foreseeable future.

One such example is the new ‘Anti-bullying’ amendments to the Act.

On the 1st of January 2014 the Fair Work Commission will have the power to hear applications from employees alleging bullying and, where appropriate, to make orders that are directed to stopping such bullying. The Commission must start to deal with a matter within 14 days of an application being made. According to the legislation an employee will have been bullied at work if an individual or a group of individuals ‘repeatedly behaves unreasonably towards the worker, and that behaviour creates a risk to health and safety.’ On the other hand, the power to make orders to stop bullying will not apply to ‘ … reasonable management action carried out in a reasonable manner.’
The President of the Fair Work Commission has published for public comment draft versions of an Anti-Bullying Case Management Model and Anti-Bullying Benchbook that will guide employers, employees and advocates on how the Commission will manage complaints of workplace bullying.

The risks to employers from this new jurisdiction are profound and the guidance provided by the Commission in the two publications is unlikely to ally fears that this power to deal with complaints will simply present another opportunity to interfere in the management of Australian businesses. There is scant recognition by the Commission of its limited experience and capability in dealing with this type of grievance. Worse, it proposes to accept all complaints with virtually no onus on the complainant to establish a prima facie case against their employer and work colleagues. The opportunity for an employer to have a matter struck out for lack of merit is virtually nil. It seems any complaint where an employee asserts that their health and safety is at risk from the behaviour of their employer or work colleagues can obtain a hearing.

Admittedly, the problem begins with the definition of bullying in the Act. The Commission must determine whether action that is characterised as bullying by complainants is reasonable management action performed in a reasonable manner. As we all know, the dynamics of relationships between staff are complex and the demands placed on people often onerous. Far too frequently, employees that are not capable or are resentful of action taken to succeed in business will complain when challenged. It would be extraordinary for even the most experienced and wise arbitrators to begin to appreciate the history, nature, psychology and competitive forces affecting working relationships in your business let alone judge whether your actions were reasonable. On the positive side, the Commission has acknowledged that it does not have the power to order payment of compensation or reinstate employees that may have been dismissed. This may discourage the most disingenuous complainants.

The education campaign waged over the past three years to eradicate workplace bullying has been very successful and there are already avenues for genuine complainants to seek redress where they have suffered serious risk to health and safety. This additional avenue of complaint is more likely to cause conflict in Australian workplaces than it is likely to heal rifts amongst people employed to work together as mature adults.