workplace bullying and amendments to the fair work act josh bornstein presentation july 2013
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Workplace bullying and amendments to the Fair Work Act by Josh Bornstein, presentation July 2013TRANSCRIPT
Workplace Bullying and
Amendments to the Fair
Work Act 2009 (Cth)
July 2013
Overview
Background and major features
Interaction with OHS laws
Elements required to make a bullying application
Orders FWC can make
Factors FWC must consider when making orders
Contravening FWC orders
FWC procedures for processing applications
Defence Force and national security exemptions
Coalition’s policy
Workplace Bullying and Proposed Amendments to the Fair Work Act 2009 (Cth) 2
The workplace bullying laws form part of the Fair Work Amendment Act
2013 (Cth) and will commence operation on 1 January 2014
The reform is the Government’s response to the report (“Workplace
Bullying ‘We just want it to stop’”) by the House of Representatives
Standing Committee on Education
Second Reading Speech by Minister Bill Shorten: The evidence to the Inquiry was overwhelmingly that the status quo was
manifestly inadequate at protecting vulnerable workers
Long overdue remedy for victims being bullied at work to seek a timely
recourse through the FWC
Bullying is a real menace in our workplaces that costs the economy as it
damages productivity
For employers, workplace bullying reduces employee morale and productivity,
increases absenteeism and staff turnover, increases workers’ compensation
costs and results in loss of business reputation
Background to the new bullying laws
Workplace Bullying and Proposed Amendments to the Fair Work Act 2009 (Cth) 3
Aimed at stopping or reducing bullying
Early intervention mechanism
FWC has flexibility in how it deals with an application
No compensation
To complement existing OHS laws
Exemptions for Defence Force and national security
operations
Major features of the new bullying laws
Workplace Bullying and Proposed Amendments to the Fair Work Act 2009 (Cth) 4
Interaction with OHS laws
The new bullying laws are designed to work alongside
existing OHS laws
Ordinarily, a person cannot commence proceedings under the
Work Health and Safety Act 2011 (Cth) if that person is
making an application or has made an application in relation
to the same matter under another Commonwealth or State
law
However, the Act provides that this prohibition in the Work
Health and Safety Act 2011 (Cth) does not apply in relation to
applications made under the bullying laws
Workplace Bullying and Proposed Amendments to the Fair Work Act 2009 (Cth) 5
Elements required to make a bullying application
New Part 6-4B (“Workers bullied at work”) allows a worker who has been
bullied at work to apply to the FWC for an order to stop the bullying
To be successful in obtaining such an order, the following elements need to
be established:
1. The person making the application must be a “worker”…
2. Who “reasonably believes”…
3. That he or she has been “bullied”...
4. “At work”
5. In a “constitutionally-covered business”
6. AND there must be a “risk that the worker will continue to be
bullied at work by the individual or group”
Workplace Bullying and Proposed Amendments to the Fair Work Act 2009 (Cth) 6
“Worker”
The Act provides that the term “worker” has the same meaning as it does under the Work Health and Safety Act 2011 (Cth), but excludes members of the Defence Force
Under the Work Health and Safety Act 2011 (Cth), a person is a worker if the person carries out work in any capacity for a person conducting a business or undertaking, including work as: (a) an employee; or
(b) a contractor or subcontractor; or
(c) an employee of a contractor or subcontractor; or
(d) an employee of a labour hire company who has been assigned to work in the person’s business or undertaking; or
(e) an outworker; or
(f) an apprentice or trainee; or
(g) a student gaining work experience; or
(h) a volunteer; or
(i) a person of a prescribed class
Extends well beyond the standard employment relationship
Under the Work Health and Safety Act 2011 (Cth), a person conducting the business or undertaking is also a worker if the person is an individual who carries out work in that business or undertaking
Workplace Bullying and Proposed Amendments to the Fair Work Act 2009 (Cth) 7
“Reasonably believes”
This element has two distinct parts
First, the worker must actually believe that they have been bullied
Second, it must also be established that the worker’s belief is reasonable
This means that the worker’s belief must be what a reasonable person (in the situation of the worker would believe)
The fact that the worker actually believes that they have been bullied is not enough to establish reasonable belief
If the worker’s belief that they have been bullied is considered by the FWC to be unreasonable, the whole application will fail
Workplace Bullying and Proposed Amendments to the Fair Work Act 2009 (Cth) 8
“Bullied”
This element has three distinct parts
A worker is “bullied” if an individual or 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
Workplace Bullying and Proposed Amendments to the Fair Work Act 2009 (Cth) 9
“Bullied” Repeated behaviour
Needs to occur more than once
Refers to the persistent nature of the behaviour and can refer to a
range of behaviours over time
Unreasonable behaviour
Broad notion
Behaviour that a reasonable person, having regard to the
circumstances would regard as unreasonable (an objective test)
Includes but is not limited to victimising, humiliating, intimidating and
threatening
Risk to Health and Safety
Consistent with workplace health and safety risks
Expert medical evidence required?
Workplace Bullying and Proposed Amendments to the Fair Work Act 2009 (Cth) 10
“Bullied” – conduct that is excluded
The definition of “bullied” excludes “reasonable management action
carried out in a reasonable manner”
The Explanatory Memorandum expresses the need for persons conducting
a business or undertaking to be able to make decisions to respond to poor
performance, take disciplinary action, and direct and control the workers
The EM provides examples of reasonable management action:
Reasonable for employers to allocate work
Reasonable for managers and supervisors to give fair and constructive feedback
on a worker’s performance
These actions are not bullying if they are carried out in a reasonable
manner
Workplace Bullying and Proposed Amendments to the Fair Work Act 2009 (Cth) 11
“At work”
The Act requires that the bullying must have occurred “at work”
There is no definition of “at work” in the Act
Explanatory Memorandum:
Worker must have been bullied “while the worker is engaged by the constitutionally-covered business”
“Orders could be based on behaviour such as threats made outside the workplace, if the threats relate to work”
Suggests a definition of “at work” that is not geographically constrained (to the workplace) or temporally constrained (to work hours)
Unclear how much of a nexus with work is required: Social events or conferences outside of work hours?
Cyber bullying – interaction with fellow workers on social media platforms like Twitter, Yammer, LinkedIn, Facebook?
Workplace Bullying and Proposed Amendments to the Fair Work Act 2009 (Cth) 12
“Constitutionally-covered business”
The bullying must have occurred at work in a “constitutionally-covered
business”
A “constitutionally-covered business” is EITHER:
A “business or undertaking” (within the meaning of the WHS Act 2011) conducted
by a person who is:
a constitutional corporation; or
the Commonwealth; or
a Commonwealth authority; or
a body corporate incorporated in a Territory
OR a “business or undertaking” (within the meaning of the WHS Act 2011)
conducted by a person principally in a Territory or Commonwealth place
In other words, the definition of “constitutionally-covered business” excludes
all State-based businesses and undertakings that are not “constitutional
corporations”
Workplace Bullying and Proposed Amendments to the Fair Work Act 2009 (Cth) 13
“Constitutional Corporation”
“Constitutional corporation” is a technical and complex legal term
“Constitutional corporation” is defined in the Fair Work Act 2009 (Cth) as a
corporation to which paragraph 51(xx) of the Constitution applies
To be a “constitutional” corporation, it must be established that:
(1) The “person” is a corporation
(2) The “person” is a constitutional corporation
“Corporation” includes
Companies incorporated under the Corporations Act 2001 (Cth)
Entities incorporated under other laws, such as not-for-profit associations and
statutory authorities given corporate status pursuant to special legislation
“Constitutional corporation” includes
Foreign corporations (corporations incorporated outside Australia that do
business in Australia)
Financial corporations formed in Australia
Trading corporations formed in Australia
Workplace Bullying and Proposed Amendments to the Fair Work Act 2009 (Cth) 14
1. Is the business/employer a corporation?
Entities that are not corporations are
excluded from coverage:
sole traders
trusts
State government departments
unincorporated partnerships
unincorporated associations
Workplace Bullying and Proposed Amendments to the Fair Work Act 2009 (Cth) 15
2. Is the corporation constitutional?
Whether a corporation formed in Australia is a constitutional corporation depends on the extent to which it is determined to be engaged in “financial” or “trading” activities
If “financial” or “trading” activities form the predominant or characteristic (or possibly merely substantial or significant) part of the corporation’s activities, the corporation may be deemed a constitutional corporation (the “activities test”)
No set formula for applying the “activities test” – it is a matter of “fact and degree” decided on a case-by-case basis
Some examples of corporations that may or may not be deemed constitutional: Statutory corporations (e.g. WorkSafe?)
Municipal councils
Public universities
Public hospitals
Incorporated not-for-profit organisations
Trade unions
Workplace Bullying and Proposed Amendments to the Fair Work Act 2009 (Cth) 16
“Risk that the worker will continue to be bullied
at work by the individual or the group”
It is not enough to show that the worker reasonably
believes he or she has been bullied at work
There must be a risk that the bullying will continue
This is because the proposed laws are aimed at stopping
future bullying, not aimed at punishment of or
compensation for past bullying
Workplace Bullying and Proposed Amendments to the Fair Work Act 2009 (Cth) 17
Orders FWC can make to stop bullying
If the following elements are established:
Worker
Reasonably believes
Bullied
At work
Constitutionally-covered business
Risk that bullying will continue…
FWC may make “any order it considers appropriate” to prevent the worker from being bullied at work by the individual or group
Except FWC cannot make an order requiring payment of a pecuniary amount (i.e. no compensation)
Explanatory Memorandum
Focus is on “resolving the matter and enabling normal working relationships to resume”
Orders are not confined to the worker's employer, but could also apply to co-workers and visitors to the workplace
Workplace Bullying and Proposed Amendments to the Fair Work Act 2009 (Cth) 18
Stopping a group or individuals from continuing the bullying
conduct
Regular monitoring of conduct by an employer
Requiring compliance with the employer's workplace bullying
policy
Requiring the employer to review their workplace bullying policy
Directing the employer to provide information and extra support
and training to workers
EM: examples of orders that FWC can make
Workplace Bullying and Proposed Amendments to the Fair Work Act 2009 (Cth) 19
Factors FWC must consider when making orders
In considering the terms of an order, the FWC is required to take into
account:
Results – final or interim – of any investigation into the bullying
Procedures available to the worker to resolve grievances or disputes
Outcomes – final or interim – arising from grievance or dispute
resolution procedures
Any other matters that the FWC considers relevant.
The Explanatory Memorandum suggests that these factors may be
used by the FWC to frame orders so that they are consistent with
compliance action being taken by the employer or other bodies,
such as health and safety regulators
Workplace Bullying and Proposed Amendments to the Fair Work Act 2009 (Cth) 20
Contravening an order to stop bullying
The Act provides that a person to whom an order applies must not contravene a term of
that order
This provision is a civil remedy provision, which means that:
A person affected by the contravention, an industrial association or an inspector can
apply to the Federal Court, the Federal Magistrates’ Court or an eligible State or
Territory court for orders in relation to a contravention or proposed contravention of the
order
The Federal Court or Federal Magistrates’ Court may make any order that the court
considers appropriate if the court is satisfied that a person has contravened or
proposes to contravene a civil remedy provision
For example, the Federal Court of Federal Magistrates’ Court may
Make an order granting an injunction or interim injunction to prevent, stop or remedy
the effects of a contravention
Make an order awarding compensation for loss that a person has suffered because of
the contravention
Make an order for the payment of a pecuniary penalty that the Court considers
appropriate up to 60 penalty units (of up to $10,200 for individuals and $51,000 for
corporations per contravention)
Workplace Bullying and Proposed Amendments to the Fair Work Act 2009 (Cth) 21
FWC procedure for processing applications
The Act provides that the FWC is to deal with applications
promptly
This is because the proposed laws are aimed at early
intervention
The FWC must “start to deal with” an application within 14
days after the application is made
A statutory note to the Act says that this might involve:
The tribunal starting to inform itself of the matter under s 590 of the Act
i.e. broad power to inform itself
Conducting a conference under s 592 i.e. power to direct person to
attend a conference, usually in private; or
Holding a hearing under s 593.
Workplace Bullying and Proposed Amendments to the Fair Work Act 2009 (Cth) 22
Defence Force and national security exemptions Members of the Defence Force cannot make applications
The FWC may dismiss an application if it considers that the
application involves matters related to Australia’s defence, national
security and covert and international operations of the Australian
Federal Police
Nothing in Part 6-4B is to prejudice Australia’s defence or national
security
Chief of the Defence Force, Director-General of Security and
Director-General of ASIS may declare that all or specified provisions
of Part 6-4B do not apply to people carrying out work for them
Workplace Bullying and Proposed Amendments to the Fair Work Act 2009 (Cth) 23
The Coalition’s policy on bullying The Coalition released its workplace relations policy on 9 May 2013
The Coalition has said that it will support the new bullying laws, subject to
two conditions
The first condition is that the worker must first seek help and impartial
advice from an independent regulatory agency
The Coalition argues that the bullying laws will cause the FWC to be swamped
with applications unless workers are required to seek help from a regulatory
agency before applying to the FWC
The second condition is that the laws are expanded to include conduct of
union officials toward managers, employees and workers
The Coalition argues that many of the more serious bullying cases have involved
unions and that Labor has intentionally attempted to exclude unions from the
coverage of the bullying laws
Workplace Bullying and Proposed Amendments to the Fair Work Act 2009 (Cth) 24
Implications of the Coalition’s policy on bullying
A potential problem with the Coalition’s policy is that
regulatory agencies typically take a long time to respond
to complaints
This may undermine the whole purpose of the bullying
laws as an early intervention mechanism aimed at
stopping the bullying
Workplace Bullying and Proposed Amendments to the Fair Work Act 2009 (Cth) 25
Personal Injury