While there was considerable ‘colour and movement’ around the Fair Work Commission’s (FWC) anti-bullying powers – after the first 12 months of operation the laws have substantially been a non event. Out of over 500 applications that have been filed, just two anti-bullying orders have been made by the FWC. Whilst these are modest indeed, there is real scope for many more orders to be made given nearly 1 in 10 Australian workers say they experience bullying at work.
That is why the seeming ‘slow-burn’ early impact of the FWC’s bullying powers should not lull businesses into thinking that bullying is not a significant workplace issue for them now and into the future.
Bullying comes with significant cost, both financial and personal, so it is right that this area of workplace misbehaviour is being targeted so directly.
The FWC’s anti-bullying powers are essentially based on existing legal principles found in workplace health and safety legislation and common law. For instance, existing Commonwealth and State workplace health and safety laws all reflect the following principles:
- A person conducting a business has the primary duty of care to ensure that workers and other people are not exposed to health and safety risks arising from the business. This includes both physical and psychological risks (Workplace Health and Safety Act 2011 (NSW) (WHS Act) s19).
- Officers, such as company directors, must exercise due diligence to ensure the business complies with the WHS Act and Regulations (WHS Act s27).
- Workers including employees, contractors, subcontractors, labour hire employees, outworkers, apprentices or volunteers have a duty to take reasonable care for their own health and safety and to take reasonable care for that of others. Significantly they must comply and co-operate with any reasonable policies and procedures of the person conducting the business. This includes a workplace bullying policy (WHS Act s28).
- Other people at a workplace, such as visitors and clients, have similar duties to that of a worker (WHS Act s29).
Similarly, under common law, an employer’s failure to take reasonable care for the safety of its workers, including complying with these important workplace health and safety obligations, may give rise to an action in tort. This is just as much the case in respect to a psychological injury as it is a physical injury.
Workplace bullying remains a key workplace health and safety issue. It can affect anyone who is working, including employees, managers, volunteers, clients, and apprentices, in any industry or occupation. This is recognised in the very broad definition of “worker” contained in the Fair Work Act 2009 (FW Act).
Australian workforce surveys consistently show that at least 10% of workers have suffered from some form of bullying. For employees with a disability, this figure can be as high as 29%. Further, about one quarter of employees surveyed state that they have witnessed bullying or harassment in the previous 12 months.
The cost to organisations has been estimated to be in the billions of dollars each year. The impact on individual workers includes anxiety, depression, post-traumatic stress disorder and even incidents of suicide which have been linked to workplace bullying.
Workers affected by bullying experience lower levels of motivation and job satisfaction and higher levels of absence due to stress. The description of a workplace environment as being “toxic” is all too common an expression. Other workers caught up in that environment don’t fare that much better.
What does this mean for employers? In simple terms it means don’t ignore bullying as an issue.
Time and again those employers that have (and actually implement) an anti-bullying policy are those which don’t have a bullying problem. If an issue of bullying does arise the policy provides a template for dealing with it. The FW Act specifically requires the FWC to have regard to whether an employer has and has complied with an anit-bullying policy.
In this day and age it would be a very foolish employer indeed that does not have an anti-bullying and harassment policy that provides for a fair and transparent system for notifying and dealing with complaints.