On 27 June 2013, the Federal Government passed legislation to amend the Fair Work Act 2009 (FW Act). The new laws are part of the second tranche of changes made to the FW Act from the Review Panel's Report last year. There are three key areas of change, namely:
We consider that the most significant of the changes to the FW Act are the new anti-bullying laws. Under the new laws, a worker who reasonably believes they have been subjected to workplace bullying will be able to apply to the Fair Work Commission for an order to stop the bullying.
The term 'worker' adopts the broad definition set out in the Work Health and Safety Act 2011 (Cth) (WHS Act) and includes contractors, subcontractors, volunteers, apprentices, trainees, students on work experience and outworkers, as well as certain other classes of deemed workers under the WHS Act.
Workplace bullying is defined as occurring when an 'individual or group of individuals repeatedly behave 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'. Unreasonable behaviour will be determined based on an objective test. It does not include reasonable management action carried out in a reasonable manner.
It is intended that the anti-bullying laws will provide an accessible, quick and cheap mechanism for workers who are bullied at work. As such:
The FWC will be able to inform itself by various means, which may include contacting a bullied worker's employer (or other parties to the application), requiring certain documents to be provided (such as workplace anti-bullying policies or procedures), as well as holding a conference or even a formal hearing. The FWC may make recommendations or express an opinion in the course of dealing with the matter. However, the new laws do not make it an offence to engage in workplace bullying. Therefore, whilst an alleged bully may be involved in FWC's determinations, they will not have a determination made against them. A breach of an order made by the FWC that relates to workplace bullying may carry a maximum penalty of $51,000.
Under the new laws, the FWC will not be able to order the reinstatement of a worker, nor can it order payment of compensation or pecuniary penalties. Examples of orders that may be made by the FWC include:
Workers will be entitled to pursue other proceedings even if an application has been made to the FWC under these provisions.
We recommend that employers:
Given the potential for legitimate performance management steps to be perceived by some workers as potential 'bullying', it would also be prudent for employers to prepare guidelines for managers when conducting performance management procedures in order to ensure that any ongoing performance management issues are documented and handled expediently and appropriately, to ensure that any such steps can be objectively viewed as 'reasonable management action' undertaken by an employer.
The new anti-bullying laws will commence operation on 1 January 2014.
Broadly, the changes in relation to family-friendly arrangements include:
The changes to union rights of entry rules include:
The new right of entry provisions (as passed) will commence operation on 1 January 2014.
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