Schools across the nation are being urged by the Federal Government to sign up to the National Day of Action against Bullying and Violence (NDA) on 15 March 2019. This is an important initiative for our future generation to become involved in stamping out bullying at our schools and in our communities.

In our workplaces however, recent Fair Work Commission statistics reveal that in 2017/18, there were 721 applications to the FWC for a stop bullying order resulting in only 53 finalised by decision or order and only 8 (or 1%) leading to a Stop bullying Order. Are our anti-bullying laws for our workplaces working?

When Bill Shorten as then Minister for Workplace Relations introduced the anti-bullying provisions in the Fair Work Act 2009 (Cth) in mid 2013, he stated –
… the Bill promotes the right to safe and healthy working conditions by providing a mechanism to help an individual worker resolve a bullying matter quickly and inexpensively. Early intervention in bullying matters can help to ensure that the bullying behaviour is stopped before it has a chance to negatively impact on the person’s health and well-being.1 

5 years later, there has been –

• an average of 718 applications each year to FWC for a stop bullying order;2

• In 2017/18, 34 out of the 53 applications (more than half) that reached a hearing were dismissed administratively, presumably because the employee did not meet the criteria for making an application like for example – the worker is not “ at work”; does not work for a “ constitutionally covered business”; there are not any repeated nor unreasonable acts; nor is there “a risk to health and safety”, or reasonable management action has taken place [s.789FD(1)]

• 33% of all total bullying applications were resolved at FWC in a conference, mediation, mention or hearing; 26% were withdrawn early before any conference or mention3 and a further 19% were withdrawn after conference or hearing but before hearing and only 8% finalised by decision.4

The Commission should be commended for managing a large case load in this area. However, do our current laws go far enough to deter bullies in our workplaces and allow workers to access meaningful remedies?

The anti-bullying provisions in the Fair Work Act aim to prevent bullying from continuing. FWC has no power to award compensation for past acts of bullying. Nor do the stop bullying provisions give FWC or a Court the power to impose any penalty on the bully (except where bullying has occurred in the context of a breach of the General Protection or anti-discrimination provisions of the Fair Work Act).

Some might say that workers compensation laws provide workers accessible rights to seek remedies for bullying at work. However, in Victoria at least, a worker generally is only able to recover common law damages in respect of an injury arising out of, or in the course of, or due to the nature of, employment if the injury is a “serious injury” in accordance with the Workcover Injury Rehabilitation or Compensation Act 2013 (Vic) (after the lodgement of a WorkCover claim).5

The Occupational Health and Safety Act 2004 (Vic), requires an employer, amongst other duties, so far as is reasonably practicable, provide and maintain for employees of the employer a working environment that is safe and without risks to health (s.21(1).

An offence against s.21(1) is an indictable offence (s.24(4), which although can be heard and determined summarily, a company can be penalised for 9000 penalty units (currently $1,450,710) and an individual for 1800 penalty units (currently $290,142).

Also, employees must also take reasonable care for the health and safety of persons who may be affected by the employee’s acts or omissions at a workplace (s.25(1)(b). Employees too can face a penalty of up to 1800 penalty units.

However, currently proceedings under the OHS Act, can only be taken by the Victorian Workcover Authority or an Inspector appointed by the Authority (s.131 of the Act allows in some circumstances a referral to be made to the Department of Public Prosecution by the Authority or at the request of a person).

Federal and State Anti-discrimination laws also exist to compensate victims of discrimination where bullying and discrimination has occurred.

Generally, however, the above avenues for workers who believe they are bullied or will continue to be bullied, do not provide a quick process for resolution – both to prevent bullying from continuing and to compensate the victim for any hurt, distress, anxiety or pain and suffering.

Areas for improvement or reform?

The Fair Work Act’s anti -bullying provisions were a positive step forward to assist individuals at work from obtaining a quick and efficient means through the Commission to conciliate or arbitrate their stop bullying application.
However, 5 years on, there might be a further three key areas of reform in this area, which would further help achieve the goal of reducing the risks of bullying occurring in the workplace (in addition to any other remedies available at law) while maintaining an accessible avenue for individuals who believe they are bullied at work. Some considerations could be –

1. The stop bullying provisions of the Act are broadened to include wider coverage of all employers and not just constitutional corporations, but partnerships and sole traders outside of Victoria; the definition of being bullied “at work” be expanded to cover activities with a reasonable connection to the employment (see Bowker & Ors v DP World Melbourne Limited & Ors).6

2. Individuals, or their Unions, and not just VWA or their inspectors, are given rights to take their own action under the OHS Act to apply for penalty orders for bullying.

3. FWC is given powers to award compensation for bullying outside of the state workers’ compensation schemes.

In a time when workplaces are becoming increasing fluid where increasingly, interactions at work are occurring by electronic means, and where the demands on workers appear to be increasing, one cannot help think that the risks of bullying are increasing and so there is no better time to reform this area.

This article is not intended to cover exhaustively your rights at work when bullied and accordingly, you should obtain legal advice in relation to the particular circumstances of your case. Also, this article is prepared for general information only and should not be relied upon as legal advice.
1. Explanatory Memorandum, Fair Work Amendment Act 2013, page 8.
2. FWC Annual Report, 2017-18, page 48.
3. While the application was managed by the Registry’s case management team.
4.FWC Annual Report, 2017-18, page 48.
5. Workers Injury Rehabilitation and Compensation Act 2013 ( Vic), Part 7.
6. [2014] FWCFB 9227 at para 51.