New Anti-Bullying laws Starting Soon

The word bully may evoke images of school yard scuffles; however the issue of bullying has, in recent years, been brought into sharp focus, with high profile examples of severe and lasting psychological trauma to victims. Indeed widespread publicity and awareness campaigns have shown that bullying is not confined to school children with increasing awareness of bullying affecting the population more broadly, especially in the workplace.

Recent reforms both at state and federal levels have sought to implement improvements to address the issue of bullying, which it would seem, can happen anywhere. Recently, an Australian Financial Review article highlighted the emerging issue of “mobbing up”, a type of bullying that targets a high-ranking executive perpetrated by groups of lower-ranked workers acting together to undermine their superior.

According to the article, senior executives have reported a rise in bullying claims, complaining they are being victimised by groups of colleagues who sit below them on the corporate ladder.

Maurice Blackburn principal Giri Sivaraman, whose office has been responding to executives seeking advice in such types of alleged bullying cases, pointed out that a gap in the law has meant that there are no early response mechanisms for people who were being bullied at work.

Currently, people must show that a bully was motivated by race, sex or a similar attribute and must show an injury caused by the bullying.

Fortunately for victims, new laws set to go into effect on 1 January 2014 will plug this gap in the law.

The Fair Work Act Amendment Act 2013 (the Act) contains anti-bullying provisions in Schedule 3 which will ensure that victims don’t have to suffer an injury before being able to seek recourse.

The new federal anti-bullying laws – which are a complement to existing work health and safety and anti-discrimination laws, along with adverse action provisions in the Fair Work Act 2009 (Cth) allow workers to bring a claim in the Fair Work Commission. The commission can order the bullying to stop, but it cannot award compensation.

When is a worker bullied?

According to s 789FD  of the Act a worker is bullied at work if: while the worker is at work in a constitutionally covered business; an individual; or a 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. (The above does not apply to reasonable management action carried out in a reasonable manner.)

A constitutionally covered business is defined in subsection (3) as a person conducting a business or undertaking (within the meaning of the Work Health and Safety Act 2011) and either the person is:

• a constitutional corporation; or
• the Commonwealth; or
• a Commonwealth authority; or
• a body corporate incorporated in a Territory; or
• the business or undertaking is conducted principally in a Territory or Commonwealth place.

Surprisingly, not everyone agrees with the reforms. People like Joydeep Hor, the managing principal of workplace law firm People + Culture Strategies,  downplay the need for legislative reform. Mr Hor has suggested, based on his own experience, that the “real spike” over the past two or three years in claims labelled as bullying have been in part due to the higher profile the issue of bullying has gained in recent times. 

However, as anyone who has been or who knows someone who has been the victim of bullying will know: the pain and suffering that can endure is real and unacceptable. Not only is it time that victims had recourse to due process but claimants should be given access to impartial courts and tribunals to decide on whether or not their claim has merit, rather than be at the mercy of an employer's HR department.

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Financial Review Article

Fair Work Amendment Act 2013 (No. 73 of 2013)