RECEIVING UNREASONABLE BEHAVIOUR CAUSING RISK TO HEALTH AND SAFETY
Bullying occurs in the workplace environment where an employee or group of workers repeatedly receive unreasonable behaviour, to the point that it there is a potential risk to health and safety.
Unreasonable behaviour can be interpreted as behaviour that a reasonable person might see as unreasonable in the circumstances of the incident. However, common examples of “unreasonable” behaviour include victimising, humiliating, intimidating or threatening. This may be portrayed in the workplace as teasing or practical jokes, pressuring someone to behave inappropriately, excluding someone from work-related events and may also include unreasonable work demands.
Bullying Differs from Discrimination
Bullying behaviour may not involve ‘adverse action’, that is, it may not have to be related to a person’s characteristics.
On the other hand, discrimination includes ‘adverse action’, for instance, firing or demoting a person due to their race, religion, or sex.
Protection from Workplace Bullying
There are national anti-bullying laws that apply to certain workers in Australia.
Firstly, to apply for an order to cease workplace bullying, a person must be a worker, which includes:
- Contractors and subcontractors;
- Employee of a contractor or subcontractor;
- Employee of a labour hire company who has been assigned to work in a particular business or organisation;
- Apprentice or trainee;
- Student gaining work experience; or
Secondly, workers are only covered by national anti-bullying laws where their employer is a ‘constitutionally covered business’, which is a business or undertaking conducted by a:
- Proprietary limited company;
- Foreign corporation;
- Trading or financial corporation formed within the limits of the Commonwealth;
- Commonwealth authority;
- Body corporate incorporated in a territory; or
- Business or organisation conducted principally in a territory or Commonwealth place.
Additionally, it is not possible for an order to be made if the worker is no longer engaged at the workplace where they allege the bullying occurred or there is no risk of the bullying conduct continuing.
Exemption from Workplace Bullying Laws
Workers employed in the following types of businesses are not covered by the national anti-bullying laws:
- Sole traders or partnerships;
- Some state government departments and (non-corporate) state public sector agencies;
- Some local governments, provided they are not trading or financial corporations;
- Corporations without significant trading or financial activities; and
- Australia defence force members.
The Fair Work Commission may dismiss applications related to Australia’s national security.
Seeking Action – Process
- An application is lodged by the worker to the Fair Work Commission for an order to stop workplace bullying.
- The application is reviewed by the Fair Work Commission to confirm that the application is complete and valid.
- Once confirmed that the worker wishes to proceed, the Fair Work Commission will serve a copy to the employer so that they are provided with an opportunity to respond.
- If the matter fails to resolve, then the application will be dealt with by the Fair Work Commission via mediation or a hearing.
- At the hearing, an order may be made for the workplace bullying to cease or for the application to be dismissed.