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Are you ready for the new workplace bullying legislation?

Significant changes to the  Fair Work Act (Cth) 2009 will come into effect on 1 January 2014. From that date, a worker will be able to directly approach the Commission to deal with a complaint of bullying.

There are significant ramifications of a bullying claim being upheld, with the Commission holding the power to make a number of orders, including referring the matter to a Work, Health and Safety regulator. The WHS regulator can levy fines of up to $3,000,000 for breaches, and officers and individuals can be subject to significant fines and face imprisonment for up to five years.

Background

Bullying is defined under the Work Health and Safety Act 2011as being repeated unreasonable behaviour that could reasonably be considered to be humiliating, intimidating, threatening or demeaning to a person, or group of persons, which creates a risk to health and safety. Bullying can be direct or indirect, overt or covert. We included examples in our recent article about invisible bullying.

Under the new Fair Work Amendment Act 2013, a worker is considered to be bullied at work if:

(a) while the worker is at work in a constitutionally-covered business:

(i) an individual; or

(ii) a group of individuals; repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member; and

(b) that behaviour creates a risk to health and safety1.

Implications for organisations

The changes to legislation is yet another way the Government has reinforced the notion that risk to worker health and safety is not just a physical one; it also includes environmental and psychological risk. This therefore has implications that extend beyond the WHS officer of the organisation. The Board, CEO, Executive team and HR must work together to ensure that workplace culture and environment does not allow or condone bullying behaviours to occur, and that poor people practices are eliminated.

The realm of care extends beyond employees. This is because the definition of worker is dependent on the definition found in the Work Health and Safety Act 2011, which includes employees, contractors, subcontractors, and volunteers, to name but a few2. Therefore WHS practices and processes that may have only been previously communicated to employees need to be shared with anyone who is involved in the delivery of business on behalf of the organisation.

Three important preventative measures

We recommend that organisations adopt the following preventative measures if they have not done so already:

  1. Put culture at the forefront: Culture starts at the top and that’s where the high bar needs to be set in terms of adherence to company values and the positive way people are treated is paramount. The Board, CEO and Executive team need to walk the talk and call each other and others on the slightest instance of poor behaviour. The executive team must also ensure they cascade down the commitment to that high bar to their direct reports. As the saying goes, if you don’t lead by vision, mission and values you’ll end up micro-managing out of tasks and details.
  2. Update policies and communicate and train staff: Bullying, harassment, grievance and WHS policies and procedures must be updated, or developed where they do not yet exist. They should be endorsed by the Board and Executive team. Once endorsed, all workers need training in this area, including specialised sessions for people with leadership responsibilities, and this training should be incorporated into onboarding processes and be repeated across the organisation every 18-24 months. Workers must be clear on what is reasonable (e.g. reasonable performance management conducted by a leader) versus unreasonable behaviour and how to discern bullying behaviours from personality clashes. The communication of the grievance process is also critical so that workers feel safe in the knowledge that any complaints will be dealt with in a fair and consistent manner.
  3. Regularly conduct a culture or climate survey: As people are generally reluctant to come forward to make complaints because of the fear of victimisation, the importance of surveying your workers using a third party cannot be underestimated.  A correctly worded employee engagement and/or safety culture survey will allow employees the opportunity to raise concerns without being directly identified. Focus groups can then be initiated in those areas where hotspots are identified. Surveys will also provide a baseline for you to benchmark future initiatives and improvements against.

More information surrounding the new legislation can be found on the Fair Work Commission’s website at www.fwc.gov.au.

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