Australian Update - Workplace Bullying

Workplace Bullying: A Message for all Employers

The Australian Federal Workplace Relations Minister, Bill Shorten, recently announced changes that will allow employees to seek assistance in respect of workplace bullying from the Fair Work Commission (FWC).
The proposed new laws seek to cut through the current complex processes available to employees under state health and safety laws and seek early intervention in bullying claims. The new changes will require the FWC to deal with any application urgently.

The Potential Changes

The Commonwealth Government has announced it will hurry through amendments to the Fair Work Act 2009 (Cth) (FW Act) creating a new cause of action in relation to workplace bullying.

The amendments are proposed to take effect from 1 July 2013.

Definition of Bullying

The changes will adopt the definition of "bullying" set out in the Draft Code of Practice Preventing and Responding to Workplace Bullying. "Bullying" will be defined as "repeated, unreasonable behaviour directed towards a worker or a group of workers that creates a risk to health and safety". Importantly, the changes will clarify that the definition of bullying does not include reasonable management action, including performance management conducted in an appropriate and reasonable manner.

Process to Resolve Complaints

Mr Shorten announced that the new process will permit workers who believe they have been bullied to make a complaint to the FWC, which will be required to list any application within 14 days of the complaint. The changes will also enable the FWC to make orders in relation to the complaint, and/or to refer the complaint to the relevant state health and safety regulator.

Early reports suggest that any new FWC processes would be similar to those currently in place for unfair dismissal and adverse action complaints. This would include a compulsory conciliation conference, which is intended to quickly resolve the dispute to the parties' mutual satisfaction and avoid the need for arbitration or court action.

Where conciliation is unsuccessful, the amendments to the Fair Work Act will enable FWC to make civil orders in respect of claims. Current penalties under the Fair Work Act are up to AUD33,000 per breach, however, the Minister has advised that he will consult with business before confirming such penalties will apply.

What does this mean for employers?

Currently, victims of workplace bullying may seek to have their complaints addressed under many different legislative regimes. If an act of bullying is serious enough to pose a risk to health and safety, employers and employees may be liable under the relevant state health and safety legislation. In addition, in Victoria, legislation created as a result of the Brodie Panlock case enables criminal prosecutions in cases of serious workplace bullying. Both of these actions are initiated by state prosecution authorities rather than the individual employee.

The changes foreshadowed by the government suggest that for the first time individual employees (rather than regulators) will be able to bring claims against their employers for workplace bullying. This is a significant change in workplace law and if it proceeds is likely to result in an influx of claims from employees.

As yet, no draft legislation has been tabled regarding these significant changes. This is expected in the autumn session of parliament and we will provide a further update once the legislation is tabled.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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QANTAS has been accused of Sex Discrimination after sacking 14 female aircraft cleaners..

Test for new laws after Qantas fires female staff


QANTAS has been accused of sex discrimination after sacking 14 female aircraft cleaners and replacing them with male baggage handlers in a restructure that saw no women offered retraining in jobs traditionally done by men.


A complaint was lodged yesterday with Fair Work Australia under new workplace laws which make it easier for the regulator to consider sex discrimination disputes.


The case, brought by the Transport Workers Union on behalf of 56-year-old Hurstville mother Souad Palmer and her co-workers, is the first to test the new law as unions gear up to push gender equity and discrimination cases this year.


The president of the ACTU, Sharan Burrow, said Qantas's treatment of the women was ''disgraceful'' and called on its chief executive, Alan Joyce, to step in.


A Qantas spokeswoman said: ''We absolutely deny this is about excluding women from Qantas … 40 per cent of our employees are women.''


Ms Palmer was told this week that Monday will be her last day, and she must hand in her uniform. She is upset she was asked to train her replacements, men moved across from baggage and ramp duties into aircraft cleaning, under a merger of the two sections.


It takes up to 1½ hours to clean a plane, where temperatures can be hot, and the work physically hard as she bends over repeatedly to pick through 300 seat pockets, vacuum and clean toilets.


''When we walk onto a plane it looks like it has been hit with a tornado. There is heaps of mess,'' Ms Palmer said.


She says she would have ''loved to give it a go'' taking on a role that would also see her working in the baggage area with the men, instead of being automatically terminated.


''This is an outrageous double standard as Qantas have simply presumed that we can't do the [men's work], yet they believe that the ramp guys can do our job.''


The national secretary of the Transport Workers Union, Tony Sheldon, said: ''Women have been directly discriminated against. They are multiskilling men into jobs done by women and no woman has been given that opportunity, despite glowing references.''


The women had been employed on rolling six-month contracts. Despite a convention that after 12 months temps are made permanent, none of the women were offered roles, while all 47 male temps in baggage handling became permanent.


If mediation by the commission does not resolve the case, it will go to Federal Court as the first test of sex discrimination provisions under Fair Work.


Unions would seek redress on gender workplace issues using powers restored to Fair Work Australia and the Fair Work Ombudsman, Ms Burrow said.


The Qantas spokeswoman said Qantas lost a cleaning contract for another airline, and had dismissed the temporary workers to protect the jobs of permanent workers.


Ms Burrow said there was a need for ''a long overdue culture shift'' as there were only ''a pathetic number'' of women on boards in Australia, and chief executives did not see or value the work of women.
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