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Not-for-profits bound by new anti-bullying laws

By Nathan Partenza

UPDATE: A total of 151 anti-bullying applications were made in the first three months the laws have been in operation, according to the Fair Work Commission's quarterly report. The report states a significant number of matters were finalised without the Commission needing to decide whether or not to make an order to stop the bullying. Of the applications finalised by a decision, seven were dismissed. An order was granted in just once case. The majority of applicants (133) were employees, while one volunteer made an application. In most cases the worker alleged the source of the bullying was their manager.

Board members are being warned they could be held personally liable under comprehensive new anti-bullying laws, amid predictions the number of claims set to be received this year could exceed initial estimates of 3500.

Amendments to the Fair Work Act, which came into effect on January 1, allow workers to take action through the Fair Work Commission if they believe they are the subject of workplace bullying.

The new laws broadly define workers as employees, contractors, subcontractors, outworkers, apprentices, trainees, work experience students and - importantly for the not-for-profit sector - volunteers.

Employers have always been required to take reasonable steps to manage health and safety risks, including bullying, in the workplace under legislation such as the Work Health and Safety Act.

However, this is the first time there has been an all-encompassing law that gives employees the ability to make a complaint to the Fair Work Commission, who then has the power to issue any orders it sees fit to prevent the bullying from continuing.

"What this legislation does is make it a very streamlined, easy process for an applicant to bring a claim, which means that not-for-profits need to be much more certain of what their compliance obligations are to minimise risk and liability," Moores senior lawyer Catherine Brooks said.

Under the laws, a worker can launch a claim against a constitutional corporation, which includes trading corporations. Ms Brooks said that many not-for-profits would be classified as a trading corporation as, whilst they do not operate to make a profit, they trade for the purpose of generating revenue.

But she said a worker had to be actively engaged with the organisation to make a claim and it was unlikely that someone who had left the organisation would be able to take such action later.

Ms Brooks urged organisations to ensure their anti-bullying policy was up-to-date and that it explained the internal complaints process to workers and managers.

"That means that if there is an issue in the workplace, hopefully the organisation can deal with it internally and a worker won't feel the need to go to an external body to get the matter resolved," she said.

The new laws mean workers who have been bullied do not need to raise the issue with their employer before lodging a complaint with the Commission.

Ms Brooks said not-for-profit organisations should also run three types of training regarding the laws.

"The first is very high-level training for the board members so that they understand what their work health and safety obligations and directors duties are," she said.

She said training should also be held for management and workers, so they understood what constituted and did not constitute bullying and how to resolve issues.

According to the laws, bullying occurs when a person or a group of people repeatedly behaves unreasonably towards a worker and the behaviour creates a risk to health and safety.

It does not include "reasonable management action carried out in a reasonable manner" and the Commission has indicated it will not promote or recommend monetary settlement of claims.

Ms Brooks said organisations had an ongoing obligation to review their anti-bullying policy to ensure it remained effective. She said legal advice should be sought if a claim was received, especially if the Commission exercised its power to require the production of documents.

The Commission says it has received the first claims under the new laws but will not provide exact figures until it publishes its standard quarterly data at the end of March.

"They were expecting at least 3500 claims to be made this year alone ... but there are many out there that think that was an under-baked figure," Ms Brooks said, adding that many unions were already promoting the new process to their membership.

"With their assistance and with more public knowledge, we expect to see an increasing amount of claims this year."

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Quick guide for board members:
What: Amendments to the Fair Work Act allow workers, including volunteers, who believe they have been bullied at work to take a complaint directly to the Fair Work Commission.
When: The laws came into effect on January 1, 2014.
Why does this affect me? Directors must exercise due diligence and have a positive obligation to ensure their organisation complies with the regulations.
How does this affect me? The new laws may increase the number of legal claims against your organisation in relation to bullying. Directors can be personally liable and penalised for their actions (or failure to act).
Action needed:
  • Ensure staff and managers are trained.
  • Ensure bullying policy and internal complaints procedures are updated and circulated.
  • Deal with any complaint quickly and be conciliatory through the process to minimise damage to individuals and reputational damage to the organisation.
28 January 2014
Training
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