Workplace bullying and amendments to the fair work act josh bornstein presentation july 2013

Workplace Bullying and

Amendments to the Fair

Work Act 2009 (Cth)

July 2013

Overview

Background and major features

Interaction with OHS laws

Elements required to make a bullying application

Orders FWC can make

Factors FWC must consider when making orders

Contravening FWC orders

FWC procedures for processing applications

Defence Force and national security exemptions

Coalition’s policy

Workplace Bullying and Proposed Amendments to the Fair Work Act 2009 (Cth) 2

The workplace bullying laws form part of the Fair Work Amendment Act

2013 (Cth) and will commence operation on 1 January 2014

The reform is the Government’s response to the report (“Workplace

Bullying ‘We just want it to stop’”) by the House of Representatives

Standing Committee on Education

Second Reading Speech by Minister Bill Shorten: The evidence to the Inquiry was overwhelmingly that the status quo was

manifestly inadequate at protecting vulnerable workers

Long overdue remedy for victims being bullied at work to seek a timely

recourse through the FWC

Bullying is a real menace in our workplaces that costs the economy as it

damages productivity

For employers, workplace bullying reduces employee morale and productivity,

increases absenteeism and staff turnover, increases workers’ compensation

costs and results in loss of business reputation

Background to the new bullying laws


Aimed at stopping or reducing bullying

Early intervention mechanism

FWC has flexibility in how it deals with an application

No compensation

To complement existing OHS laws

Exemptions for Defence Force and national security

operations

Major features of the new bullying laws


Interaction with OHS laws

The new bullying laws are designed to work alongside

existing OHS laws

Ordinarily, a person cannot commence proceedings under the

Work Health and Safety Act 2011 (Cth) if that person is

making an application or has made an application in relation

to the same matter under another Commonwealth or State

law

However, the Act provides that this prohibition in the Work

Health and Safety Act 2011 (Cth) does not apply in relation to

applications made under the bullying laws


Elements required to make a bullying application

New Part 6-4B (“Workers bullied at work”) allows a worker who has been

bullied at work to apply to the FWC for an order to stop the bullying

To be successful in obtaining such an order, the following elements need to

be established:

1. The person making the application must be a “worker”…

2. Who “reasonably believes”…

3. That he or she has been “bullied”...

4. “At work”

5. In a “constitutionally-covered business”

6. AND there must be a “risk that the worker will continue to be

bullied at work by the individual or group”


“Worker”

The Act provides that the term “worker” has the same meaning as it does under the Work Health and Safety Act 2011 (Cth), but excludes members of the Defence Force

Under the Work Health and Safety Act 2011 (Cth), a person is a worker if the person carries out work in any capacity for a person conducting a business or undertaking, including work as: (a) an employee; or

(b) a contractor or subcontractor; or

(c) an employee of a contractor or subcontractor; or

(d) an employee of a labour hire company who has been assigned to work in the person’s business or undertaking; or

(e) an outworker; or

(f) an apprentice or trainee; or

(g) a student gaining work experience; or

(h) a volunteer; or

(i) a person of a prescribed class

Extends well beyond the standard employment relationship

Under the Work Health and Safety Act 2011 (Cth), a person conducting the business or undertaking is also a worker if the person is an individual who carries out work in that business or undertaking


“Reasonably believes”

This element has two distinct parts

First, the worker must actually believe that they have been bullied

Second, it must also be established that the worker’s belief is reasonable

This means that the worker’s belief must be what a reasonable person (in the situation of the worker would believe)

The fact that the worker actually believes that they have been bullied is not enough to establish reasonable belief

If the worker’s belief that they have been bullied is considered by the FWC to be unreasonable, the whole application will fail


“Bullied”

This element has three distinct parts

A worker is “bullied” if an 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


“Bullied” Repeated behaviour

Needs to occur more than once

Refers to the persistent nature of the behaviour and can refer to a

range of behaviours over time

Unreasonable behaviour

Broad notion

Behaviour that a reasonable person, having regard to the

circumstances would regard as unreasonable (an objective test)

Includes but is not limited to victimising, humiliating, intimidating and

threatening

Risk to Health and Safety

Consistent with workplace health and safety risks

Expert medical evidence required?


“Bullied” – conduct that is excluded

The definition of “bullied” excludes “reasonable management action

carried out in a reasonable manner”

The Explanatory Memorandum expresses the need for persons conducting

a business or undertaking to be able to make decisions to respond to poor

performance, take disciplinary action, and direct and control the workers

The EM provides examples of reasonable management action:

Reasonable for employers to allocate work

Reasonable for managers and supervisors to give fair and constructive feedback

on a worker’s performance

These actions are not bullying if they are carried out in a reasonable

manner


“At work”

The Act requires that the bullying must have occurred “at work”

There is no definition of “at work” in the Act

Explanatory Memorandum:

Worker must have been bullied “while the worker is engaged by the constitutionally-covered business”

“Orders could be based on behaviour such as threats made outside the workplace, if the threats relate to work”

Suggests a definition of “at work” that is not geographically constrained (to the workplace) or temporally constrained (to work hours)

Unclear how much of a nexus with work is required: Social events or conferences outside of work hours?

Cyber bullying – interaction with fellow workers on social media platforms like Twitter, Yammer, LinkedIn, Facebook?


“Constitutionally-covered business”

The bullying must have occurred at work in a “constitutionally-covered

business”

A “constitutionally-covered business” is EITHER:

A “business or undertaking” (within the meaning of the WHS Act 2011) conducted

by a person who is:

a constitutional corporation; or

the Commonwealth; or

a Commonwealth authority; or

a body corporate incorporated in a Territory

OR a “business or undertaking” (within the meaning of the WHS Act 2011)

conducted by a person principally in a Territory or Commonwealth place

In other words, the definition of “constitutionally-covered business” excludes

all State-based businesses and undertakings that are not “constitutional

corporations”


“Constitutional Corporation”

“Constitutional corporation” is a technical and complex legal term

“Constitutional corporation” is defined in the Fair Work Act 2009 (Cth) as a

corporation to which paragraph 51(xx) of the Constitution applies

To be a “constitutional” corporation, it must be established that:

(1) The “person” is a corporation

(2) The “person” is a constitutional corporation

“Corporation” includes

Companies incorporated under the Corporations Act 2001 (Cth)

Entities incorporated under other laws, such as not-for-profit associations and

statutory authorities given corporate status pursuant to special legislation

“Constitutional corporation” includes

Foreign corporations (corporations incorporated outside Australia that do

business in Australia)

Financial corporations formed in Australia

Trading corporations formed in Australia


1. Is the business/employer a corporation?

Entities that are not corporations are

excluded from coverage:

sole traders

trusts

State government departments

unincorporated partnerships

unincorporated associations


2. Is the corporation constitutional?

Whether a corporation formed in Australia is a constitutional corporation depends on the extent to which it is determined to be engaged in “financial” or “trading” activities

If “financial” or “trading” activities form the predominant or characteristic (or possibly merely substantial or significant) part of the corporation’s activities, the corporation may be deemed a constitutional corporation (the “activities test”)

No set formula for applying the “activities test” – it is a matter of “fact and degree” decided on a case-by-case basis

Some examples of corporations that may or may not be deemed constitutional: Statutory corporations (e.g. WorkSafe?)

Municipal councils

Public universities

Public hospitals

Incorporated not-for-profit organisations

Trade unions


“Risk that the worker will continue to be bullied

at work by the individual or the group”

It is not enough to show that the worker reasonably

believes he or she has been bullied at work

There must be a risk that the bullying will continue

This is because the proposed laws are aimed at stopping

future bullying, not aimed at punishment of or

compensation for past bullying


Orders FWC can make to stop bullying

If the following elements are established:

Worker

Reasonably believes

Bullied

At work

Constitutionally-covered business

Risk that bullying will continue…

FWC may make “any order it considers appropriate” to prevent the worker from being bullied at work by the individual or group

Except FWC cannot make an order requiring payment of a pecuniary amount (i.e. no compensation)

Explanatory Memorandum

Focus is on “resolving the matter and enabling normal working relationships to resume”

Orders are not confined to the worker's employer, but could also apply to co-workers and visitors to the workplace


Stopping a group or individuals from continuing the bullying

conduct

Regular monitoring of conduct by an employer

Requiring compliance with the employer's workplace bullying

policy

Requiring the employer to review their workplace bullying policy

Directing the employer to provide information and extra support

and training to workers

EM: examples of orders that FWC can make


Factors FWC must consider when making orders

In considering the terms of an order, the FWC is required to take into

account:

Results – final or interim – of any investigation into the bullying

Procedures available to the worker to resolve grievances or disputes

Outcomes – final or interim – arising from grievance or dispute

resolution procedures

Any other matters that the FWC considers relevant.

The Explanatory Memorandum suggests that these factors may be

used by the FWC to frame orders so that they are consistent with

compliance action being taken by the employer or other bodies,

such as health and safety regulators


Contravening an order to stop bullying

The Act provides that a person to whom an order applies must not contravene a term of

that order

This provision is a civil remedy provision, which means that:

A person affected by the contravention, an industrial association or an inspector can

apply to the Federal Court, the Federal Magistrates’ Court or an eligible State or

Territory court for orders in relation to a contravention or proposed contravention of the

order

The Federal Court or Federal Magistrates’ Court may make any order that the court

considers appropriate if the court is satisfied that a person has contravened or

proposes to contravene a civil remedy provision

For example, the Federal Court of Federal Magistrates’ Court may

Make an order granting an injunction or interim injunction to prevent, stop or remedy

the effects of a contravention

Make an order awarding compensation for loss that a person has suffered because of

the contravention

Make an order for the payment of a pecuniary penalty that the Court considers

appropriate up to 60 penalty units (of up to $10,200 for individuals and $51,000 for

corporations per contravention)


FWC procedure for processing applications

The Act provides that the FWC is to deal with applications

promptly

This is because the proposed laws are aimed at early

intervention

The FWC must “start to deal with” an application within 14

days after the application is made

A statutory note to the Act says that this might involve:

The tribunal starting to inform itself of the matter under s 590 of the Act

i.e. broad power to inform itself

Conducting a conference under s 592 i.e. power to direct person to

attend a conference, usually in private; or

Holding a hearing under s 593.


Defence Force and national security exemptions Members of the Defence Force cannot make applications

The FWC may dismiss an application if it considers that the

application involves matters related to Australia’s defence, national

security and covert and international operations of the Australian

Federal Police

Nothing in Part 6-4B is to prejudice Australia’s defence or national

security

Chief of the Defence Force, Director-General of Security and

Director-General of ASIS may declare that all or specified provisions

of Part 6-4B do not apply to people carrying out work for them


The Coalition’s policy on bullying The Coalition released its workplace relations policy on 9 May 2013

The Coalition has said that it will support the new bullying laws, subject to

two conditions

The first condition is that the worker must first seek help and impartial

advice from an independent regulatory agency

The Coalition argues that the bullying laws will cause the FWC to be swamped

with applications unless workers are required to seek help from a regulatory

agency before applying to the FWC

The second condition is that the laws are expanded to include conduct of

union officials toward managers, employees and workers

The Coalition argues that many of the more serious bullying cases have involved

unions and that Labor has intentionally attempted to exclude unions from the

coverage of the bullying laws


Implications of the Coalition’s policy on bullying

A potential problem with the Coalition’s policy is that

regulatory agencies typically take a long time to respond

to complaints

This may undermine the whole purpose of the bullying

laws as an early intervention mechanism aimed at

stopping the bullying


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Workplace bullying and amendments to the fair work act josh bornstein presentation july 2013

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