Workplace Bullying – Anti-Bullying Protections
Bullying in the workplace is all too common. It can come from any direction, usually it is a superior bullying a subordinate worker but that is not necessarily always the case. The anti-bullying laws were introduced into the Fair Work Act 2009 (Cth) (“FWA”) at the beginning of 2014 and there was that the Fair Work Commission (“FWC”) would be ‘overrun’ with applications in this area of workplace law.
However, the FWC can only make orders about the prevention of workplace bullying, this means that only where there is a risk that that the worker will continue to be bullied at work will the FWC be able to make an order. If the employment relationship has ended, for example the employment contract has been terminated, then you will likely be excluded from these provisions.
The protections apply to individuals who meet the definition of worker in the Work Health and Safety Act 2011 (Cth) which is broadly a worker is an individual who performs work in any capacity, including as an employee, a contractor, a subcontractor, a subcontractor, an outworker, an apprentice, a trainee, a student gaining work experience or a volunteer. An addition to being a worker the entity must be a person conducting a business or undertaking (“PCBU”) which is one of the following:
- a constitutional corporation;
- the Commonwealth;
- a Commonwealth authority;
- body corporate incorporated in a Territory; or
- the business undertaking is conducted principally in a Territory or Commonwealth place.
When can you apply for an order?
A worker will need to satisfy the criteria of being a worker from a PCBU before being eligible to make an application to the FWC. The worker must also reasonably believe that he or she has been bullied at work.
When are you being bullied at work?
If you work for a constitutionally-covered business and you are at work while an individual or group of individuals repeatedly behaves unreasonably towards the worker, or a group of workers behaves in a way that creates a risk to health and safety.
There are three elements if you are to be successful in making out a claim, that being:
- the bullying must occur while you are at work in the constitutionally-covered business;
- an individual or a group of individuals must repeatedly behave unreasonably towards you; and
- the behaviour must create a risk to health and safety.
There is a defence for employers in cases where the claimed bullying arises out of management action. If the management action is reasonable and carried out in a reasonable manner, then you claim will likely fail.
The information in this document, broadcast or communication is provided for general guidance only. It is not legal advice, and should not be used as a substitute for consultation with professional legal or other advisors. No warranty is given to the correctness of the information contained in this document, broadcast or communication or its suitability for use by you. To the fullest extent permitted by law, no liability is accepted by the publisher for any statement or opinion, or for an error or omission or for any loss or damage suffered as a result of reliance on or use by any person of any material in the document, broadcast or communication.
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