Stop Bullying Orders: How is the System Working?

- Monday, November 02, 2015
Stop Bullying Orders

In January 2014, the anti-bullying provisions of the Fair Work Act came into effect. They included provisions for Stop Bullying Orders (SBOs). In this article, we take a look at how the SBO system is working so far.

Why were the orders introduced?
Early intervention in workplace bullying is essential to prevent further harm to the victim. In other words, stop it before it becomes embedded in workplace culture. With this in mind, SBOs have been designed to give workers fast and cost-effective access to the Fair Work Commission (FWC). 
How does the system work?

If a worker and employer cannot resolve the situation themselves, the worker can apply for an SBO by lodging a Form 72 in the FWC.  Within 14 days, the FWC must send a copy of the application to the employer, who has a further seven days to respond. The FWC then decides how to deal with the matter – it may be mediation (an informal, confidential and voluntary process), or by conference or hearing, in which the FWC will consider how the legislation applies to the situation. 

The FWC can issue a broad range of orders including:

  • Stop bullying. 
  • Behaviour monitoring. 
  • Compliance with policies. 
  • Worker training and support. 

Failure to comply with the orders can lead to fines of up to $6,000. Workers may also choose to take other civil action against the employer, or make a complaint under workplace health and safety laws.

Legislative requirements

In determining whether to grant an SBO, the FWC must be satisfied that:

  • The worker has been bullied at work.
  • There is a risk that the bullying will continue. 

The bullying must be repetitive – a single incident is not sufficient. There must also be a real risk to the worker’s occupational health and safety if the situation is not resolved. The employer can rebut the application by demonstrating that it has acted in a reasonable manner in all the circumstances. 

How the law has developed
With the rise of social networking has also come cyber bullying, complicating the meaning of “at work.” The FWC recently found that if an employee had accessed social media at work, then any social media posts that may constitute bullying had also occurred “at work”. In other matters, the FWC has also held that:
  • If an employee has left the workplace, there can be no SBO as there is no risk of the bullying continuing. 
  • Any behaviour predating January 2014 (when the laws came into effect) can be relevant.
  • It is “reasonable management action” for an employer to investigate a complaint, so long as it is done in a reasonable manner.

The FWC will create orders tailored to the specific circumstances, including orders against the employer, another employee or even a site visitor. It may make individual or group orders (or both). For example, in its first formal SBO ruling, the FWC ordered that:

  • The parties not approach one another.
  • The employer implement anti-bullying policies, procedures and training. 
  • The employer clarify its arrangements for reporting bullying. 
Lessons for employers

The FWC’s considerations of SBO applications reveal a number of lessons for employers:

  • Employers are still able to manage poor performance issues, take disciplinary action and give constructive feedback so long as they can demonstrate reasonable action. 
  • Organisations should have policies and procedures for effectively dealing with bullying, which should be regularly reviewed and updated.
  • All staff should be trained in bullying behaviours and consequences (including policies and procedures) at induction and regularly as part of workplace health and safety training. 
  • Employers should strive to stamp out a bullying culture, not only for the wellbeing of employees but also to minimise lost productivity, legal fees and negative publicity.
  • As it is possible that SBOs may be later used in workers’ compensation claims or civil damages claims, it is in the employer’s best interests to minimise any damage caused by bullying. 

In all, the system seems to be working as intended, although it is hard to imagine that aggrieved employees can easily slot back into their workplaces after being through the SBO process. What is certain is that workplace bullying is a very serious issue, and the message for employers about the need to prevent and deal with it is clear. 

NEED A SPECIALIST?  ENGAGE AN EXPERT
WISE Workplace provides expert investigators to help conduct investigations into complaints of bullying and harassment as well as a variety of training courses to assist organisations to prevent and respond to complaints.  See below for upcoming course dates.
CONDUCTING WORKPLACE INVESTIGATIONS - ADVANCED
(Articulates with Cert IV in Government Investigations)

Location: Melbourne
Date: 1-3 December


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