An update on workplace bullying

The workplace bullying laws under the Fair Work Act 2009 (Cth) have been operating for about six months and enable a worker who is bullied at work in a constitutionally-covered business to apply to the Fair Work Commission (FWC) for an order to stop the bullying.

The FWC has now made a number of decisions dealing with the operation of the workplace bullying laws, including decisions about:

• employers who are and are not covered by the laws;
• conduct that is reasonable management action rather than workplace bullying; and
• whether termination of employment ends a worker’s stop bullying application to the FWC.

The FWC has also made consent orders that restrain the conduct of the parties at the workplace and require the employer to actively manage the ongoing workplace conduct of the parties.

Employers covered and those not

A worker must be bullied at work in a ‘constitutionally-covered business’ to be able to make an application to the FWC for orders to stop bullying under section 789FD of the Fair Work Act.

Under section 789FD(3) of the Act a ‘constitutionally-covered business’ means:

• a constitutional corporation;
• the Commonwealth;
• a Commonwealth Authority;
• a body corporate incorporated in a Territory; or
• a business or undertaking conducted principally in a Territory or Commonwealth place.

In Ms Kathleen McInnes [2014] FWC 1395, the FWC found that a not-for-profit incorporated organisation that receives state and Commonwealth government funding to provide support services to people with psychiatric disabilities in Victoria was not a constitutionally-covered business.

In McInnes, the FWC found that the only possible way that the community organisation could fall within the definition of a ‘constitutionally-covered business’ was by being found to be a ‘trading corporation’.¹

However, the services provided through the agreement with the Victorian Department of Health by the employer did not have the ‘character of commercial trade in services or elements of exchange or other commercial indicia in the payment’  to be considered trading activities. The activities of the employer, namely support services, were also provided to the community by the employer without charge.

The FWC dismissed the worker’s application on the basis that the employer was not a constitutionally-covered business in accordance with section 789FD(3) of the Fair Work Act.

In Western Australia, the FWC dismissed an application for stop bullying orders brought by a government employed school teacher because neither the Department of Education (WA) nor the State Government were constitutionally-covered businesses.

Reasonable management action rather than workplace bullying

In Ms SB [2014] FWC 2104 (12 May 2014), the FWC set out some useful observations for employers about the reasonable management action exemption under the workplace bullying laws. The FWC noted that:

• management actions do not need to be perfect or ideal to be considered ‘reasonable’;
• a course of action may still be ‘reasonable’ even if particular steps are not;
• to be considered reasonable, the action must also be lawful and not be ‘irrational, absurd or ridiculous’;
• the ‘actual’ action taken by the employer needed to be considered, rather than the applicant’s perception of it; and
• it might be relevant to consider whether the action involved a significant departure from the employer’s established policies or procedures, and, if so, whether the departure was reasonable in the circumstances.

Does termination of employment end a worker’s stop bullying application?

In Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank; Haines [2014] FWC 3408 (26 May 2014), the FWC dismissed an application for stop bullying orders because the worker was no longer employed with the employer and could not therefore demonstrate to the FWC that there was a risk that he would continue to be bullied at work by that individual or group of individuals. The FWC said that it had no power to make an order to stop bullying unless the FWC could be satisfied relevantly that there was a risk that the worker would continue to be bullied at work by the individual or group of individuals identified in the application.

Employers in Queensland should closely follow the new Guidelines

The Prevention of Workplace Harassment Code of Practice 2004 (Qld) was repealed on 28 February 2014 and in its place the Queensland Government has adopted the Guide for Preventing and Responding to Workplace Bullying and Dealing with Workplace Bullying – a Workers’ Guide, prepared by Safe Work Australia.

While the Safe Work Australia Guidelines do not have the legal standing of the revoked Code, they are nevertheless intended as a document of best practice and should be closely followed by employers.