With many smaller retail companies and fashion houses being too small to have their own executive HR team, many companies run the risk of not knowing what they don’t know. Bullying law changes to the Fair Work Act 2009 (Cth) have been effective as of 1st January 2014, but what does this mean for you and your business? What are the risks and possible costs?

In summary the changes allow an employee who reasonably believes that they are being bullied at work, to apply to the Fair Work Commission for an order to stop the bullying with the possible addition of some severe penalties.

The recent Risk to Business report (RtB) suggests that 30% of workers in Australia have experienced workplace bullying in the last 12 months. With these changes to the legislation it is estimated that 3,500 bulling claims will be put forward to the Fair Work Commission (Human Resources Director, 2014). Workplace bullying can also be a breach of health and safety laws so businesses will be exposed to potential claims under that legislation also.

What is bullying?
Fair Work describes bullying as, “repeated unreasonable behaviour by an individual or group that creates a risk to health and safety”.
 

Examples of bullying (HRD 2014):

• Abusive, insulting or offensive language or comments
• Unjustified criticism or complaints
• Deliberately excluding someone from workplace activities
• Withholding information that is vital for effective work performance
• Setting unreasonable timelines or constantly changing deadlines
• Setting tasks that are unreasonably below or beyond a person’s skill or level
• Denying access to information, supervision, consultation or resources to the detriment of the worker
• Spreading misinformation or malicious rumours
• Changing work arrangements, such as rosters and leave

What can the Fair Work Commission do? (Michalandos 2013)

Once FWC are involved they can implement orders to prevent a worker from being bullied and the employer must comply with and/ or review their workplace bullying policies. If a “stop-bullying” order is breached the party could receive a penalty of up to $10,200 (person) or $51,000 (corporation).
FWC may also refer the case to State Work, Health & Safety regulators such as WorkCover and the organisation can be prosecuted under the Work Health and Safety laws. If found guilty:

• The company may receive a penalty of up to $3million
• An officer of the company (CEO, Director) may be fined $600,000 and potential imprisonment
• If a worker is involved they could be fined up to $300,000

Other potential impacts of a FWC bullying claim for employers include:

• A public test of internal policies and procedures
• A possible public record of a finding of workplace bullying and
• Adverse publicity

Preventative steps:

Whilst workers do not have to initiate an internal investigation in the first instance, the Fair Work Commission must take into account any investigations already commenced by the employer, along with any relevant policies and procedures in place. Therefore businesses with effective policies and procedures will be a better position to withstand the Commission’s review and scrutiny and an effective infrastructure in place may convince the commission not to intervene. To get their business to such a position, businesses (regardless of size) need to;

• Identify risks in their organisation
• Ensure they have an update workplace anti bullying policy and procedure in place
• Provide training regarding bullying/unacceptable behaviour to all levels of the organisation to ensure there is a clear and consistent understanding of what ‘bullying’ is and is not
• Communicate a strong message across the business that there is a zero tolerance for bullying and any instances will be treated seriously.

TSHR (Trak HR) is currently working with several clients to audit and implement effective Work, Health and Safety systems across organisations, which includes anti bullying policies and procedures. For similar support to prepare and protect your business please contact Belinda McPhee on 0417 239 458 or belindam@trakrecruiting.com

TSHR (Trak HR Consulting) is able to assist your business in developing people practices with a focus on maximising organisational profitability and delivering quantifiable ROI.