New bullying and roster rules commence 1 Jan 2014
As of 1 January 2014, bullying will become conduct that the Fair Work Commission has the power to investigate and take action on. In addition, employers will have an obligation to consult their employees in the event they wish to alter their regular hours or rosters.
So what does this mean for employers?
Employers who don’t investigate bullying complaints do so at their own peril
Changes to the Fair Work Act 2009 mean employers who ignore the complaints of their bullied workers may be subject to an order from the Fair Work Commission.
Under the legislation any worker, including trainees and contractors, may ask the Fair Work Commission to investigate accusations of bullying. The new legislation defines bullying as
“repeated unreasonable behaviour that creates a risk to the health and safety of any worker”.
If the Fair Work Commission finds that a worker has been bullied and the bullying is likely to continue, the Commission may make an appropriate order to prevent the bullying. Employers who breach the order may be exposed to fines.
Large damages payouts also possible
The changes to the Fair Work Act have been made in the context of a growing number of bullying claims with large damages payouts.
For example, in Swan v Monash Law Book Co-operative the Victorian Supreme Court awarded almost $600 000 to an employee who developed severe psychological harm after suffering through years of workplace bullying. In that case, a university book store operator failed to intervene when a store manager systematically belittled a formerly ‘bubbly’ part-time female sales assistant between 2003 and 2007. The book store operator failed to create written policies identifying appropriate workplace conduct, despite prompting from the affected employee on more than one occasion.
Swan v Monash Law Book Co-operative is not an anomaly. Other cases such as Willet v State of Victoria have provided six figure damages payouts for a bullying claim. In that case, $250 000 was awarded to a police detective who was bullied for two years.
What should employers do to address workplace bullying?
To protect themselves from intervention from the Fair Work Commission, employers should take reasonable steps to protect their employees from bullying. Employers should adopt a workplace bullying policy that includes:
- a definition of workplace bullying;
- a complaints process; and
- consequences for workers who engage in workplace bullying.
Employers should also be prepared to properly investigate workplace bullying complaints, and ensure that their bullying policy is reflected in an appropriate workplace culture.
Changes to the consultation clause in modern awards
Amendments have also been made to the Fair Work Act 2009 to create an obligation on employers to genuinely consult with their employees if they wish to change employees’ regular rosters or ordinary hours of work. In addition, employers must allow employees to be represented, if they so wish, during the consultation process.
A draft consultation clause has been released by the Fair Work Commission which is currently open for public review and submissions. The final clause is anticipated to be released by mid December 2013. The final consultation clause will then be inserted into all modern awards after the clause setting out an employer’s obligation to consult regarding a major workplace change.
What does the obligation to consult involve?
When an employer wants to change one or more employees’ regular rostered hours or ordinary hours of work, the employer will need to undertake the following steps:
- provide information to the employees about the proposed change (though an employer is not required to disclose confidential information about the disclosure);
- invite the employees to give their views about the impact of the change. This includes any impact on an employee’s family or caring responsibilities; and
- consider the employees views about the impact of the change.
If you have any questions about these changes or any other aspect of this legal alert, please do not hesitate to contact any of the members of the Clifford Gouldson workplace law team.