Did you know that as an employer, you can be held responsible for your workers even when they are not working?

 

The Fair Work Commission recently heard a case in which three employees sought an order to stop bullying at their workplace. Their employer, DP World Maritime Limited, sought to strike out their application on the basis that the bullying behaviour took place when the employees were not ‘at work’.

Numerous employees had engaged in telephone calls and Facebook messages concerning their colleagues’ union memberships and made derogatory comments to and about them. These exchanges took place both during and outside of office hours in several locations both in and outside of the workplace.

 

The Commission had to consider the definition of the expression ‘while the worker is at work’ and what it encompassed. The Commission concluded that the concept of being ‘at work’ includes instances in which the employee is performing work and also when they are engaged in any other activity permitted by their employer, such as taking a meal break. The meaning is not confined to the workplace and includes any location or time of day when they are performing work. 

 

In this case, the Full Bench held that the behaviour took place while the employees were ‘at work’ leaving their employer at risk of liability for their actions.

 

If allegations of bullying have been made in your business, contact Nevett Ford Melbourne on (03) 9614 7111 and ask to speak to one of our workplace relations team about protecting yourself from legal action.

 

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Fair Work Commission makes one order from 151 applications in first 3 months of anti-bullying jurisdiction

In March 2014 we wrote about the addition of an anti-bullying jurisdiction to the Fair Work Commission.   To recap, from 1 January 2014, ‘workers’ (a broad term which includes subcontractors and volunteers) can apply to the Commission for a stop bullying order.  Applications are dealt with by a Commissioner either by mediation, conference or hearing. 

The Commission reports on each of its jurisdictions on a quarterly basis.  On 23 April 2014, it published its first report on the anti-bullying jurisdiction, covering 1 January to 31 March 2014.

In the Commission’s first three months, it received 151 applications.  This is far below the 3,500 applications for the year predicted by the Commission’s General Manager, Bernadette O'Neill in June 2013.

Most applications were made against large employers with over 100 staff in the clerical, retail, banking and health services industries. 

Although the definition of bullying excludes reasonable management action, the vast majority of applications allege bullying by managers.

Interestingly, 20 applications alleged bullying by a group of workers.

All but eight of the 151 applications were withdrawn in the early case management or conciliation stages.

Of the eight applications that proceeded, six were rejected by the Commission for being frivolous, not having reasonable prospects of success, or because they were not made in accordance with the Act (in one example, the application form was not properly signed).

Of the remaining applications one led to the Commission’s first and only stop bullying order, made on 21 March 2014 by Senior Deputy President Drake in Applicant v Respondent [2014] PR548852.  

Details of the case are sparse - Senior Deputy President Drake’s order does not include any reasons, save that the orders were agreed by the parties during conference.  However, the order is quite specific in its wording.  The alleged perpetrator cannot have any contact with the applicant alone or comment about the applicant’s clothes or appearance.  Interestingly, the applicant was ordered not to attend work before 8.15 am.

As knowledge of the jurisdiction increases and more applications are filed, we will get a better idea of how the anti-bullying jurisdiction will work and whether bullied workers will resort to its remedies.  Given that managers are being accused of bullying most often, the main point for employers to take away from the Commission’s first three months is to ensure that managers are properly trained on all aspects of their role - starting with performance management and discipline. 

Emma Pollett-Sutton
Lawyer

Anyone seeking advice about workplace laws should contact Nevett Ford Melbourne Lawyers on 03 9614 7111.

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Workplace bullying: the new jurisdiction

Since 1 January 2014 workers who believe they have been bullied may apply to the Fair Work Commission for an order to stop the bullying.  A worker includes an employee, a contractor or sub-contractor an outworker, an apprentice or trainee, a student gaining work experience or a volunteer.

 

The definition of bullying is wide and includes either an individual or a group of individuals who have been subjected to repeated, unreasonable behaviour that creates a risk to health and safety.

 

The bullying needs to have occurred more than once but includes victimising, intimidating, humiliating or threatening.

 

Bullying excludes reasonable management action carried out in a reasonable manner.  The bullying has to occur at work but it is arguable that provided there is a connection with work bullying via social media including Facebook and LinkedIn and bullying at work related functions would be included.

 

Employers not included in the new bullying jurisdiction of the Commission include partnerships, sole traders, State Government Departments and unincorporated associations.

 

The Commission can make orders to stop the bullying, which can be directed at both the employer or the individuals involved.

 

The range of orders that could be made include:

 

·        Monitoring of behaviours by an employer;

·        Compliance with an employer’s anti-bullying policy;

·        The provision of information and additional support;

·        A review of the employer’s workplace bullying policy.

 

The Commission cannot order compensation but if its orders are not complied with it can order substantial penalties of up to $51,000.00 for a body corporate and up to $10,200.00 for an individual. 

  

Employers should ensure that they:

 

·        Understand the scope of the Commission’s new bullying powers;

·        Understand the definition of bullying;

·        Understand the difference between bullying and reasonable management action;

·        Have a clear policy stating that bullying is unacceptable, and conduct training which promotes this policy.

·        Conduct regular health checks to manage the risk of bullying.

 

In the first month of operation of the anti-bullying laws the Commission received 44 applications to stop bullying and commenced to deal with them well within the 14 day limit that the laws set.

 

The Commission will publish a report on the stop bullying applications it receives on its website in early April.  At that time we will have a better idea of how bullied people subject to the anti-bullying laws are making use of their rights.

Greg Doran
Director

Anyone seeking advice about workplace laws should contact Nevett Ford Melbourne Lawyers on 03 9614 7111.
 

 

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Being bullied at work? The Fair Work Commission is here to help (but read the fine print)

From 1 January 2014 bullied workers may be able to apply to the Fair Work Commission for an order for the bullying to stop. 

Changes to the Fair Work Act 2009 enacted by the previous Labor government and kept in place by the current coalition government (in a rare example of bipartisan support on an issue) are designed to cover not only employees but contractors, subcontractors, volunteers and even work experience students.

Everyone within those categories in Victoria, the ACT and the NT is covered by the changes.  In the other States, it's a bit of a patchwork. If bullied workers either work for or at a business that is a sole trader or partnership rather than a company, they may miss out.

This less than ideal situation reflects the federal nature of government in Australia and the limits on the Commonwealth's legislative powers imposed by the Constitution.  Victoria is able to take advantage of the fact that it referred its power to make laws on workplace relations matters to the Commonwealth over 20 years ago.

Still something is better than nothing and the changes offer workers the opportunity to deal with issues that are often addressed clumsily and ineffectively through workplace health and safety laws or workers compensation laws.

Click here to view my summary of what is about to become Part 6-4B of the Fair Work Act 2009.

Of course if a workplace has the right practices and policies in place bullying should never happen or if it does it should be dealt with before it becomes a major issue. But we don't live in a perfect world, do we?  Time will tell if the changes will make a difference and help stamp out what some experts see as an endemic problem in Australian workplaces.

Greg Doran
Director

Anyone seeking advice about workplace laws should contact Nevett Ford Melbourne Lawyers on 03 9614 7111.

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