On January 1 2014, businesses across Australia will face key changes to the way that complaints of workplace bullying are handled with an amendment to the Fair Work Act 2009 (Cth). One of the changes that will most affect businesses is a new rule that allows employees to go directly to the Fair Work Commission (FWC) to have their bullying complaints addressed; the Commission will either refer the complaint to a relevant Workplace Health and Safety (WHS) regulator or deal directly with the issue themselves.

This transfer of internal company complaints to a public body creates a range of potential pitfalls for business everywhere. Though the original amendment was put forward by the Labor Government, it’s important that employers don’t get complacent now the Coalition is in power. Industry experts believe that an Abbot-led government remains supportive of the concept and is unlikely to make major changes to the amended legislation, save for minor adjustments that may require complainants to demonstrate that they’ve tried to resolve the complaint via internal processes before they approach the FWC.

And so, with only three months to go before the changes kick in, Australian employers are officially on notice: it’s time to get your workplace affairs in order.

What employers need to know

Are you a business that employees staff directly or engages workers (contractors, sub-contractors volunteers or interns)?

If so, there are a number of issues created by the amendments that it’s important to be aware of:

  • In line with current FWC practices, there’s a reasonable expectation that decisions regarding the outcome of workplace bullying complaints may be listed on the Fair Work Australia public website. This will allow members of the public, including clients and potential employees, to research and assess a company’s track record on matters such as bullying, harassment and unfair dismissal. From a brand management/reputation perspective, this has the potential to impact your company’s reputation and the way it’s perceived in the public sphere.
  • In the event that the FWC investigates a workplace bullying complaint and is satisfied that bullying has occurred, it will provide a series of orders to the company in question in order to prevent future bullying. Companies must comply with these orders or face fines of up to $51,000.
  • Complaints that are heard by the FWC may still be subject to other proceedings, such as those associated with a breach of the WHS Act. Employers or individuals found to be in serious breach of this workplace bullying legislation can be fined personally and face criminal prosecution.

On an individual company level, if one of your employees goes directly to the FWC with a complaint, it’s important to remember that s/he is likely to be present in the workplace while the matter is being heard. An anticipated increase in the number of complaints being managed by the FWC could lead to longer lead times for dispute resolution, which may have a significant impact on staff morale.

What employers need to do

For many entrepreneurs, particularly in the start-up and SME space, developing policies and procedures when there’s so much other business to get through may seem like wasted time. However, as of now, as an employer you’ve got a lot to lose if you drop the ball on developing, refining and implementing the necessary policies and procedures to tackle workplace bullying.

To mitigate the risks, consider doing the following:

  • First, if you don’t have a specific workplace bullying policy and related complaints procedure, consider developing one. If you do, make sure it’s up to date. In the event that an employee makes a complaint, a WHS regulator or the FWC itself will almost certainly ask for these documents.
  • Consider conducting workplace behaviour training for your employees/workers and managerial staff to ensure that everyone understands their rights and responsibilities when it comes to workplace bullying and, in the case that bullying does occur, that they feel confident to respond appropriately. Training, and a record of training, can play a key role in mitigating workplace bullying offences and will show WHS regulators and the FWC that you’re serious about responding to bullying in your organisation.
  • Consider providing conflict resolution and performance management training for your managers. A significant proportion of workplace bullying complaints arise out of performance management, even though the amendments to the Fair Work Act make it clear that reasonable management action is not bullying. Teaching employees to recognise ‘reverse bullying’ – or claims of bullying that arise from reasonable disciplinary action or performance management – is just as important as teaching them not to engage in bullying behaviours.
  • Understand how bullying investigations are conducted, and determine whether relevant members of staff need further training in order to conduct in-house investigations effectively. A prompt and efficient response to bullying complaints is important.
  • Understand the WHS legislation and what it means for your business. In some instances, consultation is required for matters relating to WHS, and regulators may well request evidence as to how your organisation has met these requirements.

Need some professional assistance?

If you need professional support to prepare for the changes, please contact the gemaker HR team. We can assist you with a review of your policy and procedure documents to ensure that you’re prepared for 1 January 2014, and supply you with a series of templates to help fill gaps in existing documentation. We can also provide management and staff training workshops to ensure your employees are fully aware of their rights and responsibilities in relation to the changes to workplace bullying legislation.

Jessica Simpson
Jessica@gemaker.com.au
0415 097 033

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