Workplace bullying and harassment are matters that should be taken seriously by all employers. In the Australian Capital Territory, the Work Health and Safety Act 2011 clearly sets out a requirement for a person conducting a business or undertaking (PCBU) to take all reasonably practicable steps to provide “a work environment without risks to health and safety…”, as well as a number of other obligations.
In the context of managing workplace bullying, employers should have in place a clear policy on what constitutes acceptable behaviour, and what behaviour is unacceptable. A workplace Code of Conduct or some other guide to behaviour would be a good place to start. To be effective, this policy must be made known to all employees, and enforced by management. Employers should also develop procedures for responding to allegations of bullying, including a process for investigation of complaints.
The ACT Government has issued an enforceable Code of Practice under the Work Health and Safety Act 2011 dealing with these issues. The Work Health and Safety (Preventing and Responding to Bullying) Code of Practice 2012 (No 1) is available through the WorkSafe ACT website, and PCBUs are required to adopt the procedures set out in the Code, or other equally effective measures, in order to demonstrate that they have taken all reasonably practicable steps to ensure that the workplace is free from bullying.
In addition, recent changes to the Fair Work Act 2009 now see bullying being treated as a workplace relations issue as well as a health and safety issue. Since January 2014, the Fair Work Commission has had new powers to hear applications from workers who allege that they have been bullied at work. After assessing the evidence, the Fair Work Commission may make any order it considers appropriate or necessary to prevent a worker from being further bullied. Such orders may be directed at the relevant employer and/or the person responsible for a particular workplace – or at co- workers or other parties. However it appears likely that employers will bear the main responsibility for ensuring that FWC orders are carried out in the workplace.
Fewer bullying cases than expected have been heard by the Commission, so there are still uncertainties about how some aspects of this new jurisdiction will work in practice. However, the Commission has put out some signposts. For example, “reasonable management action carried out in a reasonable manner” is not considered to be bullying – and a significant FWC decision included the following guidance: “Determining whether management action is reasonable requires an objective assessment of the action in the context of the circumstances and knowledge of those involved at the time…. The test is whether the management action was reasonable, not whether it could have been undertaken in a manner that was ‘more reasonable’ or ‘more acceptable’ “. The Commission went on to say “management actions do not need to be perfect or ideal to be considered reasonable;” and “a course of action may still be ‘reasonable action’ even if particular steps are not”.
Thus far, the FWC has been careful not to unduly intrude into workplace arrangements, although some anti-bullying orders have been issued. However, employers who do not have robust work health and safety policies in place for their workplace, including a policy on preventing, identifying and responding to bullying, would be well advised to seek relevant support and to implement such policies without delay.
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