Bullying at work

 

New remedies for workplace bullying apply to workers in general, including contractors, but not all business in Victoria. Legal advice is recommended.

From 1 January 2014 the FW Act provides a scheme for a worker to obtain a remedy to stop bullying at work. The scheme applies to a wider range of workers than persons in employment relationships. The scheme applies to contractors, sub-contractors, outworkers, apprentices, trainees, students on work experience and volunteers (s 789FC). The FW Act defines a person as being bullied at work if while they are at work an individual or a group of individuals repeatedly behaves unreasonably towards the worker or a group of workers, including the worker, and that behaviour creates a risk to health and safety (s 789FD(1)). A person is not bullied at work if the action was reasonable management action carried out in a reasonable manner (s 789FD(2). The scheme does not cover all businesses in Victoria. A person seeking to make an application to stop bullying at work will need to seek advice as to whether the relevant business is covered by this section (see s 789FD(3)).

In the decision of Ms SB [2014] FWC 2014, the FWC considered the application of section 789FD and what constitutes bullying under that section. The FWC determined that:

a“unreasonable behaviour” should be considered to be behaviour that a reasonable person, having regard to the circumstances, may consider to be unreasonable; and

b a “risk to health and safety” means the possibility of danger to health and safety, and is not confined to actual danger to health and safety. The “risk” is the exposure to the chance of injury or loss and must also be real and not simply conceptual; and

c all of the requirements of section 789FD(1) must be read together in the assessment of whether a worker has been bullied at work.

When a person makes an application to stop bullying at work, FWC must commence dealing with the matter within 14 days. If FWC is satisfied that the person has been bullied at work and there is a risk the person will continue to be bullied, then FWC may make any order it considers appropriate to prevent the person being bullied at work (s 789FF). FWC cannot make an order for payment of a pecuniary amount.

In situations of bullying at work, consideration should also be given to relevant rights referred to in “General protections”. See also Work injuries, Discrimination and human rights, and Occupational health and safety.