Bullies are not just confined to school playgrounds. They are also found in the workplace. But come 1 January 2014, new measures are expected to apply to make it harder for them to flex their muscles.
Gadens partner John-Anthony Hodgen warns: "Ignore bullying claims at your peril. It's the repetitive-strain injury claim of the 21st century and will be the weapon of choice for disgruntled employees."
Hodgen is referring to changes to the Fair Work Act 2009, which includes new powers for the Fair Work Commission (FWC) to stop workplace bullying while also expanding the entitlements of employees. They will affect the right to request flexible work arrangements, union right of entry, hours of work, award penalty rates and parental leave.
On 21 March 2013, the federal government introduced the Fair Work Amendment Bill 2013 into Parliament in its further response to the recommendations of the Fair Work Act Review Panel from 2012 and the House of Representatives Standing Committee on Education and Employment's report, Workplace Bullying. We just want it to stop.
On the issue of workplace bullying, Hodgen says: "Directors have an obligation to ensure as far as is reasonably practicable the work health and safety (WHS), including the mental well-being, of workers, which is widely defined. These changes definitely up the ante in terms of general WHS compliance and potential for liability more generally where systems are found wanting or directors are involved in aiding or abetting a contravention."
He explains: "A worker who is being bullied at work will now be entitled to apply to the FWC for an order to stop the bullying. If a 'stop bullying order' is breached, the worker, a Fair Work inspector or a union can apply to the Federal Court, Federal Magistrates Court or an eligible state or territory court for relief.
"The practical implications for employers and workplaces are wide-reaching and will, if implemented, require employers to more proactively train staff, investigate, manage and mediate claims of such nature."
Hodgen says directors must be satisfied that:
- They have an adequate complaints handling system which can be escalated internally for quick intervention.
- Their organisation has clear, well-defined examples of unacceptable behaviour in their workplace bullying and
- They make non-compliance penalties clear and are prepared to enforce them through the use of just and fair disciplinary processes.
- The anti-bullying policy is disseminated to all staff through suitable training programs.
- The employee relations and human relations functions are resourced and trained to deal with bullying.
- Where practical, suitable employee assistance programs are accessible to staff.
- A suitable risk assessment is undertaken quickly when a complaint is raised to determine the level of its seriousness, its risk and what can be practically implemented to manage the situation.
- Their organisations seek advice or assistance where necessary.
- Their organisations look at Safe Work Australia's draft Prevention and Responding to Workplace Bullying code of practice.
In handling the changes, Hodgen advises boards to ensure their organisations do not:
- Try to hide or dismiss complaints.
- React hastily or without advice.
- Discount training and education as effective tools to assist in the management of the risk.
"Well-designed and well-implemented training and education supported by a well-defined and fair disciplinary process can and do work."
In addition, Hodgen says boards should be:
- Looking at complaints reporting and seeking to analyse bullying trend patterns.
- Enquiring about staff satisfaction surveys and considering what they are really telling the board and whether they are designed properly to help manage this risk.
- When using contractors, asking what training, policies and procedures they have in place and whether they are at the same level as their organisation's.
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