New laws prohibiting workplace bullying are now in force.

Amendments to the Fair Work Act 2009 (Cth) define bullying, harassment or victimisation as "repeated, unreasonable behavior directed towards a worker or a group of workers that creates a risk to health and safety."

Claims of bullying can be lodged by:

  • employees
  • contractors
  • subcontractors
  • trainees
  • volunteers
  • work experience students.

Allegations of bullying can be referred to the Fair Work Commission. This can deal with the complaint by:

  • referring the matter to the relevant State's work health and safety regulator; or
  • making orders to deal with the complaint on a final basis.

The Fair Work Commission can impose on employers penalties of up to $30,000 and make orders to resolve the complaint and prevent further bullying.

An employee wishing to lodge a complaint may be encouraged by the new laws to lodge their complaint with the Fair Work Commission rather than going through the employer's internal processes. The Fair Work Commission is a "no costs" jurisdiction so that, even if the complainant is unsuccessful, the employer remains liable for its own costs of defending itself before the Commission.

A defence to an employer accused of bullying is that the employer's actions constituted "reasonable management action carried out in a reasonable manner." Employers should ensure that performance reviews and management of staff are handled in a way to guard against allegations of bullying and provide a defence in the event of a complaint.

You should:

  • prepare and implement an effective workplace bullying policy which includes a definition of "workplace bullying" and a statement that workplace bullying is unlawful
  • ensure that your complaints handling process includes a procedure for dealing with bullying complaints
  • make clear to employees the consequences for those who have engaged in bullying and those who have experienced bullying
  • ensure that your performance management processes are fair and reasonable and are exercised in a fair and reasonable manner.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.