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The Australian Regulatory Framework for Preventing Harassment and Bullying at Work

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Psychosocial Risks in Labour and Social Security Law

Part of the book series: Aligning Perspectives on Health, Safety and Well-Being ((AHSW))

Abstract

Australian labour law has been slow to address the serious effects of psychosocial issues, on workers, their families, and workplaces. To the extent that it has taken a preventive approach these issues, the focus has been on harassment and bullying at work. In the past decade or two, there have been three significant measures in Australian law aimed at eliminating, or at least reducing the incidence of, harassment and bullying at work: a focus on harassment and bullying in the work health and safety regulatory framework; a strengthening of the crime of stalking; and new anti-bulling provisions in the Commonwealth Fair Work Act 2009 empowering the federal industrial relations tribunal to make orders to prevent bullying at work. This chapter briefly examines the first two of these measures, and then analyses the first three years of the new anti-bullying jurisdiction of the Fair Work Commission.

Much of this chapter is drawn from research and writing for part of Chap. 21 of Stewart, A., et al. Creighton and Stewart’s Labour Law, 6 ed, Federation Press, Sydney, 2016.

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Notes

  1. 1.

    House of Representatives Standing Committee on Education and Employment, Workplace Bullying: We just want it to stop, Commonwealth Parliament, 2012, Canberra, pp. 8–9; Productivity Commission, Workplace Relations Framework: Final Report, Productivity Commission, 2015, Melbourne, p. 663.

  2. 2.

    See Braithwaite, V, ‘A Multipronged approach to the regulation of workplace bullying’, Occasional Paper 20, February 2013, Regulatory Institutions Network, Australian National University, Canberra, p. 1.

  3. 3.

    Safe Work Australia, Psychosocial health and safety and bullying in Australian workplaces: Indicators from accepted workers’ compensation claims, Annual Statement, 2nd ed, Commonwealth of Australia, 2015, Canberra.

  4. 4.

    Ibid. See also Safe Work Australia, Work-related Mental Disorders Profile 2015, Commonwealth of Australia, 2015, Canberra.

  5. 5.

    House of Representatives Standing Committee on Education and Employment, Workplace Bullying: We just want it to stop, Commonwealth Parliament, 2012, Canberra, 2012, pp. 10–12.

  6. 6.

    Productivity Commission, Performance Benchmarking of Australian Business Regulation: Occupational Health and Safety, Productivity Commission, 2010, Melbourne, p. 279; Productivity Commission, Workplace Relations Framework: Final Report, Productivity Commission, 2015, Melbourne, pp. 629–630.

  7. 7.

    See Stewart, A. et al., Creighton and Stewart’s Labour Law, Federation Press, 6th ed, 2016, Sydney, chapter 5 and paragraphs [18.14]–[18.26]- and [18.127]–[18.136].

  8. 8.

    Ibid chapter 5.

  9. 9.

    See Johnstone, R., Quinlan, M. & McNamara, M., 2010, ‘OHS Inspectors and Psychosocial Risk Factors: Evidence from Australia’ 49(4) Safety Science 547, p. 547.

  10. 10.

    House of Representatives Standing Committee on Education and Employment 2012: 4.

  11. 11.

    See, for example, Sappideen, C., O’Grady, P. & Riley, J., Macken’s Law of Employment, 8th ed, Lawbook Co, Sydney, 2016, pp. 276–280. For a recent example, see Eaton v Tricare (Country) Pty Ltd [2016] QCA 139.

  12. 12.

    For a detailed survey, see Squelch, J. & Guthrie, R., 2010, ‘The Australian Legal Framework for Workplace Bullying’ 32 Comparative Labor Law and Policy Journal 15-54. See also House of Representatives Standing Committee on Education and Employment, Workplace Bullying: We just want it to stop, Commonwealth Parliament, 2012, Canberra, pp. 29–66, and Le Mire, S. & Owens, R., 2014, ‘A Propitious Moment? Workplace Bullying and Regulation of the Legal Profession’, 37 University of New South Wales Law Journal 1030, pp. 1049–52.

  13. 13.

    From 2008 the various Australian governments were involved in a concerted process aimed at harmonising the Australian work health and safety statutes. In 2011 and 2012 each Australian jurisdiction, apart from Victoria and Western Australia, adopted the model Work Health and Safety Act 2010. References in this chapter to ‘the harmonised Work Health and Safety Acts’ are references to these statutes. See further Stewart, A. et al., Creighton and Stewart’s Labour Law, Federation Press, 6th ed, 2016, Sydney, chapter 18. The various Work Health and Safety Acts can be found under their respective state and territory sections at http://www.austlii.edu.au/databases.html.

  14. 14.

    See Johnstone, R. & Tooma, M., Work Health and Safety Regulation in Australia: The Model Act, Federation Press, 2012, Sydney, pp. 54–61; Safe Work Australia, Interpretive Guideline: model Work Health and Safety Act – The meaning of ‘person conducting a business or undertaking’, http://www.safeworkaustralia.gov.au/sites/swa/about/publications/pages/interpretive%20-guideline-pcbu.

  15. 15.

    See Johnstone & Tooma Ibid pp. 61–2.

  16. 16.

    Safe Work Australia, 2013, Canberra. This Guide replaced the Draft Code of Practice: Preventing and Responding to Workplace Bullying. For discussion of guidance material that preceded the draft Code of Practice, see Johnstone, R., Quinlan, M. & McNamara, M., 2010, ‘OHS Inspectors and Psychosocial Risk Factors: Evidence from Australia’ 49(4) Safety Science 547, p. 550.

  17. 17.

    See Johnstone, Quinlan, & McNamara, Ibid; House of Representatives Standing Committee on Education and Employment, Workplace Bullying: We just want it to stop, Commonwealth Parliament, 2012, Canberra, pp. 163–174.

  18. 18.

    For examples, see Squelch, J. & Guthrie, R., 2010, ‘The Australian Legal Framework for Workplace Bullying’ 32 Comparative Labor Law and Policy Journal 15, pp. 22–24. For a recent example, see R v Wayne Allan Dennert (Geelong Magistrates’ Court, Lesser M, 3 June 2016).

  19. 19.

    Johnstone, R., Quinlan, M. & McNamara, M., 2010, ‘OHS Inspectors and Psychosocial Risk Factors: Evidence from Australia’ 49(4) Safety Science 547; see also House of Representatives Standing Committee on Education and Employment, Workplace Bullying: We just want it to stop, Commonwealth Parliament, 2012, Canberra, pp. 167–169.

  20. 20.

    Productivity Commission, Workplace Relations Framework: Final Report, Productivity Commission, 2015, Melbourne, pp. 639–631, quoting the Australia Council of Trade Unions.

  21. 21.

    R v Map Foundation (Magistrates Court of Victoria, Lauritsen M, 8 February 2010).

  22. 22.

    Crimes Amendment (Bullying) Act 2011 (Vic) section 3, which amended sections 21A(2) and (3) of the Crimes Act 1958 (Vic), and added a new section 21A(8). Most of the other Australian jurisdictions also have stalking offences which, to some extent at least, address harassment and bullying at work: See Johnstone, R., Bluff, E., Clayton, A, Work Health and Safety Law and Policy, Thomson Reuters/Lawbook, 3rd ed, 2012, Sydney, p, 783.

  23. 23.

    House of Representatives Standing Committee on Education and Employment, Workplace Bullying: We just want it to stop, Commonwealth Parliament, 2012, Canberra, pp. 64–65.

  24. 24.

    Ibid. p. ix.

  25. 25.

    The provisions of the Fair Work Act 2009 (Aust) discussed I this chapter can be viewed at http://www.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/.

  26. 26.

    Fair Work Act 2009 (Aust) sections 789FA and 789FL.

  27. 27.

    But does not include a member of the Defence Force: section 789FC (1).

  28. 28.

    But see Balthazaar v Department of Human Services (Cth) (2014) 241 IR 390 and Re McDonald [2016] FWC 300.

  29. 29.

    Fair Work Act 2009 (Aust) section 789FD(3).

  30. 30.

    See Stewart, A., Stewart’s Guide to Employment Law, Federation Press, 5th ed, 2015, Sydney, p. 324.

  31. 31.

    Re SW [2014] FWC 3288.

  32. 32.

    See, for example, Re McInnes [2014] FWC 1395. But see Lim v Trade & Investment Queensland [2016] FWCFB 6615. In December 2016 the Queensland Industrial Relations Act 2016 introduced anti-bullying provisions similar to the Commonwealth provisions. These provisions protect employees covered by the Queensland industrial relations system.

  33. 33.

    Ms SB [2014] FWC 2104 at [43]; Stancu [2015] FWC 1999 at [46].

  34. 34.

    See, for example, Ms Nadia Page [2015] FWC 5955 at [20]. See also Hammon v Metricon Homes Pty Ltd [2016] FWCFB 1914, where the applicant was subjected to four types of unreasonable behaviour. The Full Bench of the Commission held, however, that each incident involved a different manager, which meant there was no ‘repeated’ behaviour, and therefore no bullying.

  35. 35.

    But contrast with YH v Centre and others [2014] FWC 8905 and V.C. [2014] FWC 3940 where expressions of anger in meetings was not held to be bullying.

  36. 36.

    See for example Mrs Rachael Roberts v VIEW Launceston Pty Ltd as trustee for the VIEW Launceston Unit Trust T/A View Launceston; Ms Lisa Bird; Mr James Bird [2015] FWC 6556, where there were numerous incidents (see for example [19]-[20], [83]-[89], including being ‘defriended’ on Facebook.

  37. 37.

    Ms Nadia Page [2015] FWC 5955 at[44].

  38. 38.

    Ibid. [50].

  39. 39.

    See Fair Work Commission, Guide: Anti-Bullying, Fair Work Commission, 8 July 2016, Melbourne, p. 1. See also Fair Work Commission, Benchbook: Anti-bullying, 4 July 2013, pp. 25–31 for examples of bullying behaviour; and see 25–33 for examples of behaviour that is not bullying behaviour.

  40. 40.

    Similar phrases are used in workers’ compensation legislation in all Australian jurisdictions to limit compensable injuries under those statutes.

  41. 41.

    Ms SB [2014] FWC 2104 at [48]; Stancu [2015] FWC 1999 at [53], quoting Ms SB [2014] FWC 2104 at [48]-[50].

  42. 42.

    Tao Sun [2014] FWC 3839 at [62].

  43. 43.

    Ms SB [2014] FWC 2104 at [51].

  44. 44.

    Fair Work Commission, Guide: Anti-Bullying, Fair Work Commission, 8 July 2016, Melbourne, pp. 1–2.

  45. 45.

    Duncan Manderson [2015] FWC 8231 at [64]-[71].

  46. 46.

    Bowker v DP World Melbourne Limited [2014] FWCFB 9227 at [48]-[49] and [51]. See Stewart, A., Stewart's Guide to Employment Law, 5ed, 2015, Federation Press, 324 and Fair Work Commission, Benchbook: Anti-bullying, 4 July 2013: 24 and 34.

  47. 47.

    Bassanese [2015] FWC 3515 at [26].

  48. 48.

    Bowker v DP World Melbourne Limited [2014] FWCFB 9227 at [54]-[56]. See Stewart, A., Stewart's Guide to Employment Law, 5 ed, 2015, Federation Press, 2015: 324.

  49. 49.

    Ms SB [2014] FWC 2104 at [44]; Stancu [2015] FWC 1999 at [46]; and see also Harris v WorkPac Pty Ltd [2013] FWC 4111.

  50. 50.

    In James Willis v Marie Gibson; Capital Radiology Pty Ltd T/A Capital Radiology; Peita Carroll [2105] FWC 3538 at [24] where the Fair Work Commission stated that there just needed to be ‘some risk’.

  51. 51.

    Shaw v Australia and New Zealand Banking Group [2014] FWC 3408 at [15]. See also Re G.C. [2014] FWC 6998; Bassanese [2015] FWC 3515 at [30].

  52. 52.

    James Willis v Marie Gibson; Capital Radiology Pty Ltd T/A Capital Radiology; Peita Carroll [2105] FWC 3538 at [35].

  53. 53.

    See L.P. [2015] FWC 6602.

  54. 54.

    Hankin [2014] FWC 7923. See also Re KM [2016] FWC 2088.

  55. 55.

    Shaw v Australia and New Zealand Banking Group [2014] FWC 3408 at [166]. See also Re G.C. [2014] FWC 6998; Bassanese [2015] FWC 3515 at [32].

  56. 56.

    Shaw v Australia and New Zealand Banking Group [2014] FWC 3408 at [15]. See also Re G.C. [2014] FWC 6998; Bassanese [2015] FWC 3515 at [30]; Ravi [2014] FWC 7507; and Hankin [2014] FWC 7923.

  57. 57.

    [2015] FWC 4980.

  58. 58.

    Ibid at [11].

  59. 59.

    Ibid at [12].

  60. 60.

    [2015] FWC 5272. For also Re Simounds [2016] FWC 2040; and Adachi [2016] FWC 1498.

  61. 61.

    I[2015] FWC 5272 at [25].

  62. 62.

    Section 789FE (1).

  63. 63.

    Under s 590.

  64. 64.

    Under s 592. This may include a ‘determinative conference’, ‘a form of proceedings designed to enable the Commission to determine the facts and make the necessary evidentiary and other findings’: CF and NW and Company A and ED [2015] FWC 5272at [9], n 2.

  65. 65.

    Under s 593.

  66. 66.

    The case management model and the benchbook can be accessed at www.fwc.gov.au.

  67. 67.

    For cases addressing the issue of whether the FWC can be required to suppress the names of respondents to bullying applications, see Hankin [2014] FWC 8402; Mac [2015] FWC 774 and Krombholz [2015] FWC 3040. For a decision in which the Fair Work Commission accepted that it should not publish confidential workplace investigation documents, see Bowker [2015] FWC 4542.

  68. 68.

    Ibid [30].

  69. 69.

    Ibid.

  70. 70.

    Section 789FF (1). Fair Work Commission, Anti-Bullying Jurisdiction: Summary of the case management model, 20 November 2013, para [13].

  71. 71.

    Re Atkinson [2015] FWC 4980.

  72. 72.

    S 789FF(1). The Fair Work Commission does not promote or recommend monetary settlements:see Fair Work Commission, Guide: Anti-bullying, Fair Work Commission, Melbourne, 8 July 2016, 7. Workers may, however, seek compensation in other ways: see A Stewart et al., Creighton & Stewart’s Labour Law, 6 ed, Federation Press, Sydney, 2016, [18.81], [18.116]-[18.117].

  73. 73.

    McInnes v Peninsula Support Services Inc [2014] FWCFB 1440 at [9].

  74. 74.

    Fair Work Commission, Anti-Bullying Jurisdiction: Summary of the case management model, 20 November 2013, para [13].

  75. 75.

    Section 789FF (2). See Fair Work Commission, Guide: Anti-Bullying, Fair Work Commission, Melbourne, 8 July 2016: 52–55; and CF and NW and Company A and ED [2015] FWC 5272 at [27]-[29].

  76. 76.

    Fair Work Commission, Anti-Bullying Jurisdiction: Summary of the case management model, 20 November 2013, para [15]. In Bassanese [2015] FWC 3515 Commissioner Hampton stated that a reference to a health and safety regulator could only be made if the applicant faced ongoing health and safety risks.

  77. 77.

    Fair Work Commission, Anti-Bullying Jurisdiction: Summary of the case management model, 20 November 2013, para [13].

  78. 78.

    See Churches v Jackson [2016] FWCFB 2367 at [34].

  79. 79.

    The Fair Work Commission produces a Quarterly report on the anti-bullying jurisdiction with statistics on applications lodged, finalised matters, applications dismissed and granted, analysis of staff mediations, and demographic information about applicants and respondents. See https://www.fwc.gov.au/about-us/reports-publications/quarterly-reports. Data discussed in this paragraph is drawn from those reports.

  80. 80.

    Applicant v Respondent (FWC, AB2014/1052, 10 September 2014). The orders were revoked in December 2014 (Re Applicant [2014] FWC 9184) after the applicant reported that the conflict had been resolved.

  81. 81.

    Applicant v Company A Pty Ltd (FWC, PR555521, 15 September 2014).

  82. 82.

    Re CF [2015] FWC 5272; PR569997, 30 July 2015.

  83. 83.

    [2015] FWC 5272 at [33].

  84. 84.

    [2015] FWC 6556 at [123].

  85. 85.

    [2015] FWC 7312.

  86. 86.

    A second respondent, the MUA, offered undertakings in lieu of an order: ibid at [117]–[118].

  87. 87.

    Ibid at [116].

  88. 88.

    Proceedings can be brought in the Federal Court, Federal Circuit Court or a State Court, and the maximum civil penalty for each contravention is A$10,800. See Fair Work Act 2009 (Aust) section 539. For a good introduction to enforcement under the Fair Work Act, see Stewart, A., Stewart’s Guide to Employment Law, Federation Press, 5th ed, 2015, Sydney, pp. 194–198.

  89. 89.

    Section 789FG. Breaches of the Fair Work Act 2009.

  90. 90.

    For a discussion on ‘no reasonable prospects of success’, see Shaw v Australia and New Zealand Banking Group [2014] FWC 3408 [8]-[11]; Obatoki v Mallee Track Health & Community Services and others [2015] FWCFB 1661, [18]-[21]; and Bassanese [2015] FWC 3515, [35]-[41]. It may also dismiss an application if it considers that the application might involve matters that relate to Australia's defence or national security, or an existing or future covert operation or international operation of the Australian Federal Police: Fair Work Act 2009 (Aust) section 789FI. See also section 12E of the Work Health and Safety Act 2011 (Aust). See http://www.austlii.edu.au/au/legis/cth/consol_act/whasa2011218/.

  91. 91.

    See again Johnstone, R., Quinlan, M. & McNamara, M., 2010, ‘OHS Inspectors and Psychosocial Risk Factors: Evidence from Australia’ 49(4) Safety Science 547.

  92. 92.

    See Le Mire, S. & Owens, R., 2014, ‘A Propitious Moment? Workplace Bullying and Regulation of the Legal Profession’, 37 University of New South Wales Law Journal 1030, pp. 1052–55.

  93. 93.

    Productivity Commission, Workplace Relations Framework, Final Report, Productivity Commission, 2015, Melbourne at p. 627.

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  1. Queensland University of Technology, Brisbane, Australia

    Richard Johnstone

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  1. COMPTRASEC UMR5114, CNRS, University of Bordeaux, Bordeaux, France

    Loïc Lerouge

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Johnstone, R. (2017). The Australian Regulatory Framework for Preventing Harassment and Bullying at Work. In: Lerouge, L. (eds) Psychosocial Risks in Labour and Social Security Law. Aligning Perspectives on Health, Safety and Well-Being. Springer, Cham. https://doi.org/10.1007/978-3-319-63065-6_15

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