WHS practices tested under new anti-bullying provisions

A senior Employment and Workplace Health and Safety lawyer warns employers to revisit their performance management practices, which she predicts will be put under increased scrutiny now that the new anti-bullying provisions of the Fair Work Act 2009 have taken effect.

Hall & Wilcox Employment and Workplace Health & Safety Special Counsel Jessica Fletcher said that the new provisions, which extend the jurisdiction of the Fair Work Commission (FWC) to deal with complaints of bullying, may also present an opportunity for employees to frustrate legitimate management actions instigated by an employer.

“While the introduction of the new jurisdiction seeks to address the concern that bullying is eradicated from workplaces, the new jurisdiction may come at the likely cost of some employees using the process to provide roadblocks to legitimate performance management and disciplinary procedures.

“The new provisions will undeniably put a spotlight on every employer’s complaint handling and performance management procedures, along with the overall culture of the employer’s workplace.

“As such, employers who fail to ensure that the people within their organisation who are responsible for managing workers know when, and how to best deal with performance issues, may be at a higher risk of having to spend time and money responding to bullying claims in the FWC,” Ms Fletcher said.

However, Ms Fletcher said the FWC would not just be paying greater attention to how employers dealt with their employees.

“The FWC will have new powers to deal with complaints of bullying from all people working for a business, since the term ‘worker’ will soon include volunteers, trainees, contractors and subcontractors and their employees.

“So it’s likely that the already increased number of bullying claims will surge when the new provisions take effect, particularly because of the broader coverage of these provisions,” she said.

Of those complaints received by the Commission, Ms Fletcher said some would be deemed ‘reasonable management action’, which is an exception to the definition of bullying under the new provisions.

“If applicants don’t fully understand what is defined by the term ‘bullying’, or if they do understand, but are attempting to frustrate or delay a management process, the outcome is the same, and the losers will often be employers who have to expend time and incur costs in managing these complaints throughout the FWC process,” she said.

“These guides are going to be useful tools to help employers review and audit their existing practices, and to formulate a best-practice approach to preventing and responding to bullying.”

Ms Fletcher also confirmed that the commencement of the new provisions would coincide with the release of two new guides on workplace bullying issued by Safe Work Australia.

“These guides are going to be useful tools to help employers review and audit their existing practices, and to formulate a best-practice approach to preventing and responding to bullying.

“While not legally enforceable, the guides will form part of an the evidence matrix in work health and safety prosecutions, and are likely to be used in FWC bullying claims to demonstrate what the employer ought to have known about how to prevent and respond to bullying in the workplace.

“The guides will be the base from which the employer’s actions (or inaction) will be assessed,” she said.

“These are a few things organisations should be doing now to ensure their organisation is ready for the new provisions and to minimise the risk that the next round of performance reviews results in a bullying claim in the FWC:

1. Review the organisation’s existing policies against the new workplace bullying provisions to ensure the changes are reflected. This includes creating new policies that define the term ‘bullying’ and outlining what actions need to be taken if it is identified in the workplace. This will help demonstrate the organisation’s preparedness to proactively deal with complaints of bullying should an employee bring a claim in the FWC.
2. Conduct workplace behaviour training for managers and employees, concentrating on the organisation’s code of conduct/charter and the revised provisions.
3. Conduct training for managers on ‘performance management’ – what it is, and when and how to do it – to ensure it’s consistent with the organisation’s revised policies.”