Last month’s column on workplace bullying focused on how to identify the problem and manage complaints. This month, KAREN CROUCH delves into Fair Work regulations and employers’ legal obligations.
Recent complaints about workplace culture in parliament offices are a pertinent reminder that no working environment is immune to bullying. It’s also been brought into sharper focus with the release of the second Medical Training Survey in which around one in four ophthalmology trainees stated they had experienced bullying, harassment and/or discrimination at work.
Bullying may take many different forms. Regardless, it must be discouraged to protect staff self-esteem and ensure healthy employee relationships. This is easier said than done because it’s often more convenient to simply hope or assume it will pass away, or that the victim will adapt, desist from repetition of the practice or accept the prevailing situation.
The regulatory scene
When the the Fair Work Act 2009 was introduced, the government committed to undertaking a review within two years of its full implementation. On 22 December 2011 the minister announced an independent panel of three experts to conduct a post-implementation review of the legislation in accordance with this commitment.
From 2012, various regulatory changes have come into play including a new Fair Work Commission (FWC) anti-bullying jurisdiction. From 1 January 2014 a ‘worker’ who believes they have been bullied while at work may submit an application to the FWC for an order to stop the bullying.
The definition of ‘worker’ is particularly important for employers to note. Specifically, a worker is defined as an individual who performs work in any capacity, including as an employee, contractor, subcontractor, outworker, apprentice, trainee, student gaining work experience or volunteer.
Also noteworthy is that amendments have been drafted to exclude reasonable management action – such as disciplinary, if justified – from being deemed bullying.
With regard to the types of orders FWC may make, it must be to prevent further bullying. Other than an order requiring payment of a pecuniary amount the FWC may consider ordering individuals or groups of individuals to stop the specified behaviour, reviewing an employer’s bullying policy, and provision of information, support and training.
As each case and workplace may be unique, issued orders are likely to vary.
FWC’s anti-bullying jurisdiction
Employers are encouraged to ensure staff responsible for managing workplace complaints and responding to employee grievances are provided with training on prevention and responding.
Under the new jurisdiction, and as part of the information gathering stage, FWC can request copies of documentation regarding grievance and complaint handling procedures. Knowing such resources may be requested by the FWC, employers are urged to review their policies and procedures to ensure compliance with work health and safety obligations and consistency with language contained in the Amendment Act.
When reviewing bullying policies and complaints handling procedures, employers should download a copy of the Safe Work Australia Guidelines on Preventing and Responding to Workplace Bullying from the Safe Work Australia website and consult the Anti- Bullying section of the FWC website for current information and resources.
Preventative action
Apart from legal and regulatory aspects, it is pertinent to review some of the salient issues which may assist in discouraging such behaviour. Invariably, corrective action occurs after an event which fails to adequately address staff complaints.
Prevention can only be effective if potentially dangerous situations are detected prior to occurrence and, most meaningfully, if the frequently declared practice culture clearly identifies such behaviour as abhorrent and unacceptable.
It is also practical for owners, supervisors and managers to be aware that bullying can be administered by a male or female employee against another male or female as there is a view that incidents mainly occur between senior males pressuring females.
The other basic feature of human behaviour that underpins this activity and indeed all relations between employees and employers of all genders and/or cultural persuasions is respect. If junior or middle management employees, in particular, feel respected for their efforts regardless of their level of competency or performance, staff are more likely to appreciate the caring environment and increase their efforts to excel in their duties.
Bullying can occur in many forms, one being sexual harassment. And sadly, recent complaints have highlighted the tendency of junior staff to refrain from reporting sexual exploitation for fear of losing their employment which highlights the need for a meaningful grievance policy which will not deter staff from reporting such behaviour regardless of seniority.
ABOUT THE AUTHOR: Karen Crouch is Managing Director of Health Practice Creations Group, a company that assists with practice set ups, administrative, legal and financial management of practices. Contact Karen on (02) 0433233478 or kcrouch@hpcnsw.com.au or visit www.hpcgroup.com.au.
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