New Workplace Bullying Laws: Helping or Hindering Productivity?

The introduction of new Australian workplace bullying laws on 1 January 2014, means big changes for both employees and employers. The major benefit of these new laws is that they protect workers from bullying and provide a means of dealing with such circumstances in the workplace.

Bullying has been shown to impact on workplace morale, productivity and employee health. However the scope of the new laws raises issues for employers as to the possible impact on their business’ productivity if they aren’t careful.

What are the new workplace bullying laws?

The new Part 6-4B provides that workers, who allege they are being bullied at work by an individual or group, are entitled to make an application to the Fair Work Commission (FWC) for an order to ‘stop the bullying’.

Under the new laws, workplace bullying is defined as repeated and unreasonable behavior directed at a worker that creates a risk to health and safety. It adopts the broad definition of worker in the Work Health and Safety Act 2011 (NSW) which includes an employee, contractor, subcontractor, apprentice, outworker, trainee, volunteer or work-experience student. This means that the employer is liable for any bullying complaint made by essentially any form of worker.

Concerns for productivity?

There are a couple of concerns for employers that remain unclear under the proposed provisions. Each time an employee makes an application for an order to the FWC the employer will be required to attend and defend the allegations, as there is no obligation on the employee to first approach their employer. This means time, costs and resources will be taken away from running the actual business and funnelled in defending claims at the FWC. An increase in red tape always slows down productivity for any business.

An application to the FWC or subsequent orders made may also impact on the productivity of workers within the business. If the worker did not approach or warn their employer first, then this may damage the relationship between the employee and employer. Any orders that result from the application could also cause internal conflict or stress. They may also require the reallocation of some workers or tasks which may slow down productivity. These mental consequences could distract the worker or fellow workers from maximising their productivity.

The exception – reasonable management action

As the provisions are quite broad it is possible that they may be exploited by some workers as a way of dealing with internal conflicts or disputes. To try and address this, under the new workplace bullying laws a worker is not bullied if the conduct was reasonable management action carried out in a reasonable manner.

The FWC has already cautioned the misuse of bullying complaints in the case of Harris v WorkPac Pty Ltd [2013].  The manager was terminated after an employee made allegations of bullying. The bullying complaint was not investigated until 17 months after the events. The manager was interviewed and provided a written response denying the allegations but was terminated the next day. The Commission found that the allegations were unsupported and that this was really a case of a difficult working relationship. It warned that bullying must be clearly distinguished from reasonable management action. It is not enough to rely solely on the complaint of a worker and employers should carefully investigate complaints.

Filtering process?

The new workplace bullying laws need to carefully balance the rights of employees with the productivity of businesses. A filtering process, as proposed by the Government, whereby a worker must first approach their employer or a WHS regulator would greatly aid in avoiding the scenarios above. Business could also look to adopt more preventative measures that make for happier and healthier workplaces.

Renee Kasbarian is a final year Bachelor of Arts/Law student at the University of Western Sydney. She is the recipient of an Academic Excellence Scholarship and member of the Aspire Leadership Program. In addition to her studies, she also works part-time as a Law Clerk at Matthews Folbigg Lawyers. She enjoys skiing, cooking and traveling.

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