Thursday, December 26, 2013

New anti-bullying Bill: critical issues

There has predictably been a negative reaction to  the new legislation coming in on 1st of January from the business sector. AND

Of course, much better if those with power are able to continue to bully their staff just for the hell of it or in an attempt to get blood out of a stone.

As I have said many times, Canberra Institute of Technology and many other workplaces just have to bite the bullet and put into practice fair management structures so that bullying is nipped in the bud as soon as it rears its ugly head. Instituting ways that vulnerable underlings such as casual and contract workers can report on how they have been managed, will go a long way to solving the bullying issue.

Of course the gutless nay sayers want the power to stay just as it is and citing the possibility of abuse of the system is one such pathetic argument. The true abuse of the 'system' is the sheer numbers of vulnerable staff bullied daily for no other reason that that the bully has been able to get away with it. Poor bully, probably got teased at school and is now making up for it. Pathetic.


New anti-bullying Bill: critical issues

The Fair Work Amendment Bill 2013, tabled in Federal Parliament in March, introduces new measures to help tackle workplace bullying. A law firm has analysed the key aspects of this proposal, and has identified the critical issues for employers.
The legislation proposes to amend the Fair Work Act 2009 (Cth) to allow workers and others who believe they have been bullied at work to have their grievances heard in the Fair Work Commission (FWC).

This measure, announced by the Federal Government in February, supports a recommendation from last year’s National Inquiry into Workplace Bullying that arrangements be put in place for individuals to seek remedies, through a legal dispute resolution process, if they believe they have been subjected to workplace bullying.
In an article published online, Sarah Ralph and Siobhan Flores-Walsh, partners at Norton Rose Australia, said the legislation will mean that for the first time, bullying will expressly be brought within the jurisdiction of the industrial umpire.
"Previously, bullying could only be raised as an example of conduct that may breach adverse action provisions within the Fair Work Act or unfair dismissal laws," they said.

Key aspects of the Bill

Ralph and Flores-Walsh said the key aspect of the Bill is the right of a worker who reasonably believes they have been bullied at work to apply to the Fair Work Commission (FWC) for an order to stop the bullying.
Workers, not employees
They said that it was critical the Bill proposes that the right to apply to the FWC will be provided to "workers", being a "significantly broader concept" than "employee".
"The definition of 'worker' is taken from the Work Health and Safety Act 2011 (Cth) and extends to any person who carries out work in any capacity for a person conducting a business or undertaking," they said.
"This will include employees, contractors and subcontractors, volunteers, apprentices, trainees and work experience students. In addition, there are other people who are deemed workers for the purposes of the WHS Act, including Commonwealth statutory office holders."
Ralph and Flores-Walsh advised employers they should be aware that applications for relief from bullying can be made in relation to their workplace by people other than employees.
The Bill, if passed, will include a codified definition of workplace bullying, which will refer to "repeated, unreasonable behaviour directed towards a worker or a group of workers that creates a risk to health and safety".
Ralph and Flores-Walsh explained that this new definition will mean a worker will not be considered to have been bullied in circumstances where the conduct has only occurred once. (They noted, however, that single instances of unreasonable behaviour "may give rise to other rights (such as rights under the general protections provisions of the FW Act), depending upon the reason for the conduct".)
Although the proposed definition of "workplace bullying" does not include reasonable management practices (eg reasonable performance management), Ralph and Flores-Walsh said that it is not clear in the legislation whether the onus is on the employer or the complainant to prove that the management activities were unreasonable.
"It is clear that the Commission will need to decide the issue of whether a complaint of bullying is substantiated or whether the complaint arises from reasonable performance management or management of misconduct," they said.
"This will be a potential hurdle for employers."
The role of the FWC
Ralph and Flores-Walsh said the proposed reforms will require the FWC to deal with an employee’s application within 14 days as a matter of priority (eg by listing it for conference or hearing or inviting submissions from the parties).
"[W]here the FWC is satisfied the worker has been bullied at work and there is a risk that this will continue, the FWC will have the power to make any order it considers appropriate to prevent the worker from being bullied," they said.
Although these orders cannot require the payment of a monetary amount, Ralph and Flores-Walsh said that failure to comply with an order of the FWC can result in the contravening party being ordered to pay a civil penalty.
They also explained that the making of an order by the FWC under these proposed provisions will not prevent a proceeding being commenced under the WHS Act for a breach of that Act.
Critical issues for employers
Although management of workers that is conducted reasonably will not be considered workplace bullying under the legislation, Ralph and Flores-Walsh warned employers that just because a worker is being reasonably managed will not prevent that worker from bringing a bullying application.
Given that the reasonableness (or otherwise) of the management by the employer will be reviewed by the FWC in order to determine whether bullying has occurred, Ralph and Flores-Walsh recommended that employers review their processes and procedures for managing performance, conduct and complaints in order to ensure steps taken demonstrate the reasonableness of management action. [take note CIT bullies]
"If the Bill becomes law, it will be even more important for employers to document a range of performance and conduct discussions and decisions — not just in relation to formal warnings and termination of employment," they said.
"Additionally, employers should appropriately address complaints, particularly complaints of bullying, when they are made by employees and other workers."
Lack of detail
Ralph and Flores-Walsh said that at present, there is a lack of detail in the proposed amendments as to who will be parties to a bullying dispute if the alleged bully is not the employer.
"It is unclear whether, in those circumstances, an employer will be able to make submissions as an interested or affected party, particularly if orders made by the FWC will impact on the way in which the employer deals with its workers," they said.
"Further, the making of a bullying complaint to the FWC will likely be the exercise of a ‘workplace right’ by an employee for the purposes of the adverse action provisions of the Fair Work Act. The interplay between these two issues has not been addressed in the Bill and it therefore appears possible for an employee to bring both an adverse action application and bullying application concurrently."

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