QLD EILS Seminar: The New Bullying Laws

Workplace Bullying
Amendments to the Fair
Work Act 2009 (Cth)
13 March 2014
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2EMPLOYMENT & INDUSTRIAL LAW SEMINAR: THE NEW BULLYING LAWS

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AGENDA
 Background and major features
 Interaction with OHS laws
 Elements required to make a bullying application
 Orders FWC can make
 Factors FWC must consider when making orders
 Contravening FWC orders
 FWC procedures for processing applications
 Defence Force and national security exemptions
 Coalition’s policy
 Implication of the new bullying laws on work injury compensation claims

 The workplace bullying laws form part of the Fair Work Amendment Act 2013 (Cth)
and will commence operation on 1 January 2014
 The reform is the Government’s response to the report (“Workplace Bullying ‘We
just want it to stop’”) by the House of Representatives Standing Committee on
Education
 Second Reading Speech by Minister Bill Shorten:
 The evidence to the Inquiry was overwhelmingly that the status quo was
manifestly inadequate at protecting vulnerable workers
 Long overdue remedy for victims being bullied at work to seek a timely
recourse through the FWC
 Bullying is a real menace in our workplaces that costs the economy as it
damages productivity
 For employers, workplace bullying reduces employee morale and productivity,
increases absenteeism and staff turnover, increases workers’ compensation
costs and results in loss of business reputation
BACKGROUND TO THE NEW
BULLYING LAWS
EMPLOYMENT & INDUSTRIAL LAW SEMINAR: THE NEW BULLYING LAWS 7

 Aimed at stopping or reducing bullying
 Early intervention mechanism
 FWC has flexibility in how it deals with an application
 No compensation
 To complement existing OHS laws
 Exemptions for Defence Force and national security operations
MAJOR FEATURES OF THE NEW
BULLYING LAWS

INTERACTION WITH OHS LAWS
 The new bullying laws are designed to work alongside existing OHS laws
 Ordinarily, a person cannot commence proceedings under the Work Health
and Safety Act 2011 (Qld) if that person is making an application or has
made an application in relation to the same matter under another
Commonwealth or State law
 However, the Act provides that this prohibition in the Work Health and
Safety Act 2011 does not apply in relation to applications made under the
bullying laws

ELEMENTS OF ANTI-BULLYING
APPLICATIONS
10

WHAT’S REQUIRED?
 New Part 6-4B (“Workers bullied at work”) allows a worker who has been
bullied at work to apply to the FWC for an order to stop the bullying
 To be successful in obtaining such an order, the following elements need to
be established:
1. The person making the application must be a “worker”…
2. Who “reasonably believes”…
3. That he or she has been “bullied”...
4. “At work”
5. In a “constitutionally-covered business”
6. AND there must be a “risk that the worker will continue to be bullied at
work by the individual or group”

“WORKER”
 The Act provides that the term “worker” has the same meaning as it does under the
Work Health and Safety Act 2011 (Cth), but excludes members of the Defence Force
 Under the Work Health and Safety Act 2011 (Cth), a person is a worker if the person
carries out work in any capacity for a person conducting a business or undertaking,
including work as:
 (a) an employee; or
 (b) a contractor or subcontractor; or
 (c) an employee of a contractor or subcontractor; or
 (d) an employee of a labour hire company who has been assigned to work in the
person’s business or undertaking; or
 (e) an outworker; or
 (f) an apprentice or trainee; or
 (g) a student gaining work experience; or
 (h) a volunteer; or
 (i) a person of a prescribed class

“WORKER”
 Extends well beyond the standard employment relationship
 Under the Work Health and Safety Act 2011 (Cth), a person conducting the
business or undertaking is also a worker if the person is an individual who
carries out work in that business or undertaking

DEFENCE FORCE AND NATIONAL
SECURITY EXEMPTIONS
 Members of the Defence Force cannot make applications
 The FWC may dismiss an application if it considers that the application
involves matters related to Australia’s defence, national security and covert
and international operations of the Australian Federal Police
 Nothing in Part 6-4B is to prejudice Australia’s defence or national security
 Chief of the Defence Force, Director-General of Security and Director-
General of ASIS may declare that all or specified provisions of Part 6-4B do
not apply to people carrying out work for them

“REASONABLY BELIEVES”
 This element has two distinct parts
 First, the worker must actually believe that they have been bullied
 Second, it must also be established that the worker’s belief is reasonable
 This means that the worker’s belief must be what a reasonable person
(in the situation of the worker would believe)
 The fact that the worker actually believes that they have been bullied is
not enough to establish reasonable belief
 If the worker’s belief that they have been bullied is considered by the
FWC to be unreasonable, the whole application will fail

“BULLIED”
 This element has three distinct parts
 A worker is “bullied” if an individual or group of individuals
 repeatedly
 behaves unreasonably towards the worker, or a group of workers of
which the worker is a member AND
 that behaviour creates a risk to health and safety

 Repeated behaviour
 Needs to occur more than once but there is no specific number of incidents
required for the behaviour to be considered “repeated”
 Refers to the persistent nature of the behaviour and can refer to a range of
behaviours over time
 FWC able to consider conduct that occurred prior to 1 January 2014
 Unreasonable behaviour
 Broad notion
 Behaviour that a reasonable person, having regard to the circumstances would
regard as unreasonable (an objective test)
 Includes but not limited to victimising, humiliating, intimidating and threatening
“BULLIED”

 Risk to Health and Safety
 The Anti-bullying Benchbook states that risk means exposure to chance
of injury or loss and provides that proof of actual harm to health and
safety is not necessary provided that a risk to health and safety created
by bullying behaviour is demonstrated.
“BULLIED”

“BULLIED” – CONDUCT THAT IS
EXCLUDED
 The definition of “bullied” excludes “reasonable management action
carried out in a reasonable manner”
 The EM provides examples of “reasonable management” action:
 Reasonable for employers to allocate work
 Reasonable for managers and supervisors to give fair and constructive
feedback on a worker’s performance

“BULLIED” – CONDUCT THAT IS
EXCLUDED
 The Anti-bullying Benchbook provides examples of “management action”:
 Performance appraisals and ongoing meetings to address underperformance
 Counselling or disciplining a worker for misconduct
 Modifying a worker’s duties including transferring or re-deploying the worker
 Investigating alleged misconduct
 Denying a worker a benefit in relation to their employment
 Refusing an employee permission to return to work due to a medical condition
 These actions are not bullying if they are carried out in a reasonable
manner. What is reasonable is a question of fact and the test is an objective
one.

“AT WORK”
 The Act requires that the bullying must have occurred “at work”
 There is no definition of “at work” in the Act
 Explanatory Memorandum:
 Worker must have been bullied “while the worker is engaged by the
constitutionally-covered business”
 “Orders could be based on behaviour such as threats made outside the
workplace, if the threats relate to work”
 Suggests a definition of “at work” that is not geographically constrained (to the
workplace) or temporally constrained (to work hours)
 Unclear how much of a nexus with work is required:
 Social events or conferences outside of work hours?
 Cyber bullying – interaction with fellow workers on social media platforms like
Twitter, Yammer, LinkedIn, Facebook?

“AT WORK”
 Application by Kathleen McInnes [2014] FWCFB 1440 (6 March 2014):
 McInnes filed an anti-bulling application on 9 January 2014.
 She alleged that she had been subjected to bullying over a six year
period, ending in May 2013.
 Employer raised jurisdictional objection alleging that the effect of the
Commission considering pre-2014 conduct would be that the legislation
has retrospective application.
 ACCI, AIG and ACTU were invited to make submissions – AIG AND
ACTU made submissions.

“AT WORK”
 Application by Kathleen McInnes [2014] FWCFB 1440 (6 March 2014):
 Full Bench was not persuaded by AIG’s submissions.
 Said the employer’s submission had a misplaced reliance on the
present tense is 2789FD (definition of “at work”).
 Found that:
"Legislation only operates retrospectively if it provides that rights and
obligations are changed with effect prior to the commencement of the
legislation."
 Drew a distinction between legislation having a “prior effect on past
events” and legislation that bases future action on past events.
 It is up to the Commission to determine whether applicant was/is being
bullied at work and whether there is a risk of continued bullying.

“CONSTITUTIONALLY-COVERED
BUSINESS”
 The bullying must have occurred at work in a “constitutionally-covered business”
 A “constitutionally-covered business” is EITHER:
 A “business or undertaking” (within the meaning of the WHS Act 2011) conducted
by a person who is:
 a constitutional corporation; or
 the Commonwealth; or
 a Commonwealth authority; or
 a body corporate incorporated in a Territory
 OR a “business or undertaking” (within the meaning of the WHS Act 2011)
conducted by a person principally in a Territory or Commonwealth place
 In other words, the definition of “constitutionally-covered business” excludes all State-
based businesses and undertakings that are not “constitutional corporations”

“CONSTITUTIONAL CORPORATION”
 A constitutional corporation is either a foreign corporation or a financial or
trading corporation formed in Australia. A corporation may be deemed to be
a constitutional corporation if “financial” or “trading” activities form the
predominant or characteristic (or possibly merely substantial or significant)
part of the corporation’s activities.
 Entities that are not constitutionally-covered are excluded from coverage:
 sole traders
 Non-corporate trustees
 State government departments
 unincorporated partnerships and or associations

“RISK THAT THE WORKER WILL CONTINUE
TO BE BULLIED AT WORK BY THE
INDIVIDUAL OR THE GROUP”
 It is not enough to show that the worker reasonably believes he or she has
been bullied at work
 There must be a risk that the bullying will continue
 This is because the proposed laws are aimed at stopping future bullying, not
aimed at punishment of or compensation for past bullying

FAIR WORK COMMISSION
ANTI-BULLYING ORDERS
27

ORDERS FWC CAN MAKE TO STOP
BULLYING
 If the elements outlined earlier are established FWC may make “any order
it considers appropriate” to prevent the worker from being bullied at work
by the individual or group
 Except FWC cannot make an order requiring payment of a pecuniary
amount (i.e. no compensation or penalties)
 Explanatory Memorandum
 Focus is on “resolving the matter and enabling normal working
relationships to resume”
 Orders are not confined to the worker's employer, but could also apply
to co-workers and visitors to the workplace

 Stopping a group or individuals from continuing the bullying conduct
 Regular monitoring of conduct by an employer
 Requiring compliance with the employer's workplace bullying policy
 Requiring the employer to review their workplace bullying policy
 Directing the employer to provide information and extra support and training
to workers
EM: EXAMPLES OF ORDERS THAT FWC
CAN MAKE

FACTORS FWC MUST CONSIDER WHEN
MAKING ORDERS
 Before making an order, the FWC is required to take into account:
 Results – final or interim – of any investigation into the bullying
 Procedures available to the worker to resolve grievances or disputes
 Outcomes – final or interim – arising from grievance or dispute
resolution procedures
 Any other matters that the FWC considers relevant
 The Explanatory Memorandum suggests that these factors may be used by
the FWC to frame orders so that they are consistent with compliance action
being taken by the employer or other bodies, such as health and safety
regulators

CONTRAVENING AN ORDER TO STOP
BULLYING
 The Act provides that a person to whom an order applies must not
contravene a term of that order
 This provision is a civil remedy provision, which means that:
 A person affected by the contravention, an industrial association or an inspector
can apply to the Federal Court, the Federal Magistrates’ Court or an eligible
State or Territory court for orders in relation to a contravention or proposed
contravention of the order
 The Federal Court or Federal Magistrates’ Court may make any order that the
court considers appropriate if the court is satisfied that a person has contravened
or proposes to contravene a civil remedy provision

CONTRAVENING AN ORDER TO STOP
BULLYING
 For example, the Federal Court of Federal Magistrates’ Court may
 Make an order granting an injunction or interim injunction to prevent,
stop or remedy the effects of a contravention
 Make an order awarding compensation for loss that a person has
suffered because of the contravention
 Make an order for the payment of a pecuniary penalty that the Court
considers appropriate up to 60 penalty units (of up to $10,200 for
individuals and $51,000 for corporations per contravention)

FAIR WORK COMMISSION
PROCEDURE
33

FWC PROCEDURE FOR PROCESSING
APPLICATIONS
 No time limit on making an application
 FWC can only make an order if there is a risk the worker will continue to be bullied.
 A person may apply for an order to stop bullying using Form F72 which requires the
person to provide details of:
 The person(s) against whom bullying has been alleged
 Whether that person (or people) are still in the workplace and whether the applicant is still
required to interact with them
 Whether the applicant is still employed or engaged in the workplace
 The bullying behaviour including examples of the behaviour, who was involved in the
examples, how many times the behaviour occurred and the period when it occurred
 Whether the applicant reported the incidents
 The outcome of any reports made by the applicant of the incidents
 Any performance management or disciplinary action
 Any bullying policy or grievance or dispute resolution procedure
 Any immediate risks to the applicant in the workplace
 Any complaints made to another agency or organisation

FWC PROCEDURE FOR PROCESSING
APPLICATIONS
 The Act provides that the FWC is to deal with applications promptly because the
proposed laws are aimed at early intervention
 The FWC must “start to deal with” an application within 14 days after the
application is made. A statutory note to the Act says that this might involve:
 The FWC starting to inform itself of the matter under s 590 of the Act
 Conducting a conference under s 592
 Holding a hearing under s 593
 Referring the matter to a work, health and safety regulator (Explanatory
Memorandum)
 The FWC Guide to Anti-Workplace Bullying provides:
 The FWC may schedule a mediation.
 If the matter is not suitable for mediation or the matter cannot be resolved at
mediation the FWC may hold a conference or hearing.
 The FWC may also hold a preliminary conference to better inform the
member and the parties and issues involved.

FWC FLOWCHART ON THE ANTI-BULLYING PROCESS
36

ANTI-BULLYING APPLICATIONS SLOW
SO FAR
 No major decisions of FWC regarding anti-bullying applications (other than
jurisdictional objection regarding which bullying counts)
 In a media release on 5 February 2014 FWC confirmed that it had received 44
bullying complaints in the first month of its new jurisdiction, but the tribunal's
President, Justice Iain Ross, it's too early to say whether this is any guide to the future
rate of applications
 Justice Ross said that January and February "traditionally see a smaller number of
lodgements with the Commission, particularly for individual-based rights disputes such
as unfair dismissals and general protections"
 FWC said it had started to deal with all applications within the 14-day period required
by the Act, and in most cases, on the day they were lodged
 It said some applications had already been dealt with by a tribunal member, and six
applications had been withdrawn during the "preliminary assessment process

THE COALITION’S PRE-ELECTION
POLICY ON BULLYING
 The Coalition released its workplace relations policy on 9 May 2013
 Prior to the election the Coalition had said that it will support the new
bullying laws, subject to two conditions:
1. The worker must first seek help and impartial advice from an independent regulatory
agency
The Coalition argues that the bullying laws will cause the FWC to be swamped with
applications unless workers are required to seek help from a regulatory agency
before applying to the FWC
2. The laws be expanded to include conduct of union officials toward managers,
employees and workers
The Coalition argues that many of the more serious bullying cases have involved
unions and that Labor has intentionally attempted to exclude unions from the
coverage of the bullying laws

THE COALITION’S POST-ELECTION
COMMENTS
 On 2 November 2013, the Weekend Australian reported that Employment Minister Eric
Abetz had said “that the Commission was close to finalising new rules and regulations that
would result in bullying claims by workers being subject to a "filter" before they were
decided on by the commission.” It went on to report:
 Senator Abetz said the government had been in discussions with the Commission
about introducing new rules designed to ensure the tribunal was "not clogged up" by
the introduction of new ant-bullying laws.
 "We said there should be a filter for the bullying claims and to the credit of the Fair
Work Commission, they are putting in rules and systems that may well provide that
filter," he said. "Now we are prepared to legislate (but) if the Fair Work Commission
can achieve the same outcome by rules and procedures, I will just say well done to
them and obviate the need for legislation.”
 No mention in the recent Amendments to FW Act to bullying – second tranche?

IMPLICATIONS OF THE COALITION’S
POLICY ON BULLYING
 A potential problem with the Coalition’s “filtration” policy – if it includes
filtering via a regulatory body is – that regulatory agencies typically take a
long time to respond to complaints
 However, the Coalition may not require filtering via a regulatory body, given
the FWC approach and Senator Abetz’s comments
 Any delay may undermine the whole purpose of the bullying laws as an
early intervention mechanism aimed at stopping the bullying

Workplace Bullying and
WorkCover Claims
Presented by Peter Koutsoukis, Principal
13 March 2014
twitter.com/WeFightForFair
facebook.com/MauriceBlackburnLawyers

WORKERS’ COMPENSATION AND
REHABILITATION ACT 2003 (“WCRA”)
 To be eligible for workers’ compensation for psychological injury:
 Work must be a “significant contributing factor”
 Not fall within the reasonable management action (“RMA”) exclusion

AMENDMENTS TO WORKERS’
COMPENSATION AND REHABILITATION
ACT 2003 (“WCRA”)
 For psychological injury work must be the major significant contributing
factor
 Applies to injuries on or after 15 October 2013
 For over period of time injuries when is the date of injury?

REASONABLE MANAGEMENT ACTION
TEST
 Section 32(5) provides that injury does not include a psychiatric or
psychological disorder arising out of, or in the course of, any of the following
circumstances:
 reasonable management action taken in a reasonable
way by the employer in connection with the worker’s
employment;
 the worker’s expectation or perception of reasonable
management action being taken against the worker;

TEST
 Examples of actions that may be reasonable management actions taken in
a reasonable way:
 action taken to transfer, demote, discipline, redeploy,
retrench or dismiss the worker
 a decision not to award or provide promotion, reclassification or
transfer of, or leave of absence or benefit in connection with, the
worker’s employment

TEST
 Breaking the test down
 If the exclusion in s.32(5) is applied to exclude psychiatric condition as an injury, then it
must appear from the evidence that:
 There is relevant “action”;
 The relevant action is “management” action;
 The injury must “arise out of or in the course of” such management action in the sense
that there is a causal nexus between the reasonable management action and the
injury (RACQ Operation Pty Ltd v Q-Comp [2003] QIC 46) and that the management
action must make significant contribution to the psychiatric injury (Q-Comp v
Education Queensland [2005] QIC 46);
 Such management action must be “reasonable”; and
 Any such management action must be “taken in a reasonable way”.
 If any of these ingredients are missing, the exclusion does not apply.

CASE LAW ON RMA
 What is reasonable?
 Each case turns on its own facts
 However, courts have recently emphasised the importance of considering
the individual circumstances of the worker, and procedural fairness:
 Aigner and Q-Comp (C/2011/2)
- Unreasonable in the circumstances
 “Mere blemish” and “global evaluation”
- Bowers v WorkCover Queensland [2002] QIC 18
- QR Limited and Q-Comp (WC/2009/25)

CASE LAW – “MERE BLEMISH” AND
“GLOBAL EVALUATION”
 Delaney v Q-Comp [2005] QIC 11
“The critical point is that there were repetitive blemishes joined by subject
matter, time and personality in a discordant workplace housing to the
knowledge of management a worker who had been compensated once
before in the face of workplace stress. In my view the Appellant was
entitled to a more global evaluation of the actions in which the
management team had engaged.”

CASE LAW
 It’s not enough that it’s RMA
 Must also be taken in a reasonable way
 The RMA exclusion is only enlivened when management action is both
inherently reasonable and taken in a reasonable way
 Courts will look at both: reasonable action can become unreasonable
 Tilley v Q-Comp (Industrial Magistrates Court decision dated 24 January
2011)

CLAIMS FOR DAMAGES
 Must have a Degree of Permanent Impairment of more than 5 % assessed
pursuant to the Guide for Evaluation of Permanent Impairment
 Greater focus on impairment assessment by WorkCover and Medical
Assessment tribunal

PSYCHIATRIC IMPAIRMENT RATING
SYSTEM (PIRS)
1. Self care and personal hygiene
2. Social and recreational activities
3. Travel
4. Social functioning (relationships)
5. Concentration
6. Employability

WORKING WITH WORK HEALTH AND
SAFETY ACT 2011 AND FAIR WORK ACT
2009
 Can assist damages claims
 As an alternative

Personal Injury
This information is prepared for the purposes of the seminar conducted on 13 March 2014 only. The content of this paper is
not legal advice. It is information of a general nature. Readers requiring legal assistance for their specific circumstances
should not rely on the content of the foregoing but should take appropriate legal advice.

QLD EILS Seminar: The New Bullying Laws

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