New Anti-bullying Amendments to Fair Work 2009 : What does it

mean for Government?

Speakers

• Hayley Petrony, Assistant Victorian Government Solicitor

• Alison O’Brien, Assistant Victorian Government Solicitor

• Rachel Amamoo, Managing Principal Solicitor

• David Catanese, Principal Solicitor

• Vicki Moulatsiotis, Principal Solicitor

• Jonathan Bayly, Principal Solicitor

• Hannah Brown, Principal Solicitor

• Katherine Francis, Senior Solicitor

• Matt Garozzo, Solicitor

“I know there isn’t no beast – not with claws and all that, I mean- but I know there isn’t no fear, either”

Piggy Paused.

Ralph moved restlessly.

“Unless what?”

“Unless we get frightened of people”

-William Golding; Lord of the Flies.

ANTI-BULLYING JURISDICTION

Fair Work Act 2009 (Cth)

Public Administration Act 2004 (Vic))

Tort Law Negligence

Employment Contract

Industrial Instruments made under the Fair Work Act 2009 (Cth), i.e. the VPS

Determination

Anti-discrimination laws: State/Commonwealth

Accident Compensation Act 1985 (Vic)

Occupational Health and Safety Act 2004 (Vic)

Brodie’s Law

What is bullying?Workplace bullying is repeated, unreasonable behaviour directed toward an employee, or group of employees, that creates a risk to health and safety.

Within this definition:

• ‘unreasonable behaviour’ means behaviour that a reasonable person, having regard to all the circumstances, would expect to victimise, humiliate, undermine or threaten;

• ‘behaviour’ includes actions of individuals or a group, and may involve using a system of work as a means of victimising, humiliating, undermining or threatening;

• ‘risk to health and safety’ includes risk to the mental or physical health of the employee.

Worksafe Victoria Guidance Note

New Legislative ProvisionsSection 789FD When is a worker bullied at work?

(1) A worker is bullied at work if:

(a) while the worker is at work in a constitutionally-covered business:

(i) an individual; or(ii) a group of individuals;

repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member; and

(b) that behaviour creates a risk to health and safety.

(2) To avoid doubt, subsection (1) does not apply to reasonable management action carried out in a reasonable manner.

A worker is an individual who performs work in any capacity, including as an employee, a contractor, a subcontractor, an outworker, an apprentice, a trainee, a student gaining work experience or a volunteer.

Examples of bullying:• abusive, insulting or offensive language or comments

• unjustified criticism or complaints

• excluding, isolating or marginalising a person from normal work activities

• withholding information that is vital for effective work performance

• unreasonably overloading a person with work or not providing enough work

• setting unreasonable timelines or constantly changing deadlines

Further examples of bullying:• setting tasks that are unreasonably below or beyond a

person’s skill level

• denying access to information, supervision, consultation or resources such that it has a detriment to the worker

• spreading misinformation or malicious rumours

• changing work arrangements, such as rosters and leave, to the detriment of a worker or workers

• unreasonable treatment in relation to accessing workplace entitlements such as leave or training

What is not bullying

Bullying does not include:

• reasonable management action carried out in a reasonable manner

• Performance management or disciplinary action – if reasonable

• A single aggravated incident will not constitute bullying

Application to FWC to stop bullying

• FWC must start to deal with an application within 14 days.

• FWC can:

– Inform itself of the matter;

– Conduct a conference; or

– Hold a hearing.

What must FWC take into account?

• Investigation report

• Grievance or dispute procedure

• Outcome of grievance procedure

Orders to Stop Bullying• If FWC is satisfied that:

– the worker has been bullied at work by an individual or group of individuals; and

– there is a risk that the worker will continue to be bullied at work by the individual or group of individuals

then FWC may make any order it considers appropriate to prevent the worker from being bullied.

• FWC does not have power to order compensation.

Examples of orders

• FWC may issue orders requiring:

– Review of bullying policies – Removal of employees from proximity of the person(s)

who instigate the bullying behaviour– Regular monitoring of behaviours in the workplace – Workplace training– Referral to WorkSafe Victoria where it considers this

necessary and appropriate.

• FWC can not reinstate an employee or award compensation.

Contravening an order made by the Fair Work Commission

• A person to whom an order applies must not contravene a term of the order

• Enforcement applications can be made to the Federal Court or Federal Magistrates’ Court for civil remedies.

• The maximum penalty is a civil fine of:

– $10,200 for an individual person– $51,000 for a corporation

Constitutional Foundations

– Anti-Bullying Amendments have a narrow application

– No s.109 inconsistency issues

– The key issue turns on the identification of constitutional corporations.

Commonwealth Legislative Power With Respect to

Corporations

Section 51(xx)

The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:

…(xx) foreign corporations, and trading or financial

corporations formed within the limits of the Commonwealth;

Trading Corporation: The Football

Case (1979) 143 CLR 190

• “A corporation formed within the limits of Australia will satisfy the description “trading corporation” if trading is a substantial corporate activity” - Barwick CJ

• “Essentially it is a description or label given to a corporation when its trading activities form a sufficiently significant proportion of its overall activities as to merit its description as a trading corporation” - Mason J

Financial Corporation: State

Superannuation Board (1982) 150 CLR 282

• “A corporation which engages in financial activities” – Mason, Murphy and Deane JJ

Indicia of Trading Status

• Aboriginal Legal Service of Western Australia (Inc) v Lawrence (2008) 37 WAR 450; Hughes v Western Australian Cricket Association (1986) 120 FCR 191.

• Eight principles identified by Toohey J and Steytler P.

Principle 1

• A corporation may be a trading corporation even though trading is not its predominantor principal activity.

Principle 2

• However, trading must be a substantial or significant and not merely a peripheral activity. Look at both the relative and the absolute significance of trading as a corporate activity.

Principle 3

• Trade includes the purchase and sale of goods and services. It is not limited to the exchange of commodities.

Principle 4

• The making of a profit is not an essential prerequisite to trade, but it is a usual concomitant.

Principle 5

• The purpose of trade is irrelevant. Trade used to generate income for a charitable or other non-commercial purpose is still trade.

Principle 6

• Whether the trading activities of a corporation are sufficient to make it a trading corporation is a question of fact and degree.

Principle 7

• The current activities of the corporation are a major criterion. However, regard may also be had to the intended purpose of the corporation, especially if the corporation is newly formed or its functions are limited by statute.

Principle 8

• The commercial nature of an activity is a significant element in deciding whether the activity is in trade or trading.

Example 1

• A statutory corporation empowered to construct public works for the purpose of generating electricity and to carry on the business of providing electricity to customers in the State of Tasmania.

• Held to be a trading corporation: The Commonwealth v Tasmania (1983) 158 CLR 1

Example 2• A statutory corporation charged with

managing the superannuation entitlements of public servants; empowered to provide commercial loans to public servants.

• Held to be a financial corporation: State Superannuation Board v Trade Practices Commission (1982) 150 CLR 281

Example 3• The Metropolitan Fire And Emergency

Services Board established by statute to prevent and suppress fires; also entered into substantial commercial arrangements for servicing of fire equipment.

• Held to be a trading corporation: United

Firefighters’ Union v MFESB (1998) 83 FCR346

Example 4• A public hospital incorporated by statute and

owned by the State of New South Wales; major source of income was government subsidy, but also charged fees to patients for medical services.

• Held to be a trading corporation: E v

Australian Red Cross Society (1991) 27 FCR310

Example 5• The University of Western Australia

established by statute; entered into significant commercial property transactions, sold publications, rented student accommodation and carried on a technology business.

• Held to be a trading corporation: Quickendenv O’Connor (2001) 109 FCR 243

Example 6

• The Etheridge Shire Council, a Queensland local government body. Empowered to enact local laws and perform local government functions; also provided services, but mostly ran at a loss and were purely incidental to government functions.

• Held not to be a trading corporation: Australian

Workers’ Union v Etheridge Shire Council (2008) 171 FCR 102

Tort Law

• Employers are required 'to take reasonable care to avoid exposing employees to unnecessary risks of injury'.

• Whether an employer has committed a tort following an allegation of bullying will depend on the circumstances of the case including an employer’s duty of care for that person, where the injury arose, whether the risk was reasonably foreseeable and what steps had been taken to mitigate against the risk.

Case Examples

• Swan v Monash Law Book Co-Operative [2013] VSC 326

• Brown v Maurice Blackburn Cashman [2013] VSCA 122 [22 May 2013]

• NSW v Fahy (2007) 232 CLR 486, [57]

Vicarious Liability

• Employers may be held vicariously liability for the wrongdoing of their employees, even where this conduct amounts to criminal activity or serious misconduct.

• Employers will not be liable where the employee is acting independently and outside the scope of her or his employment, for example, when the act in question is outside the scope of the tasks which the bullying employee was employed to perform.

Contract Law• At common law, contracts of employment have also been held to

include an implied duty of care.

• The content of the implied contractual duty of care is substantially similar to the duties owed by an employer in negligence, however the two sources of duty operate concurrently.

• This means that an employer could be liable both under tort, and under contract, for breaches of duty.

• Kondis v State Transport Authority (1984) 154 CLR 672, 693-4 (Brennan J)

Contract Law Continued• There are implied terms of mutual trust and

confidence in a contract of employment

• Implied terms are contractually enforceable

• Barker v The Commonwealth Bank of Australia [2012] FCA 942.

• Nationwide News v Naidu (2007) ATR 81.

Anti-discrimination legislation • Equal Opportunity Act 2010 (Vic), or:

– Racial Discrimination Act 1975 (Cth),

– Sex Discrimination Act 1984 (Cth),

– Age Discrimination Act 2004 (Cth),

– Disability Discrimination Act 1992 (Cth), or

– Human Rights and Equal Opportunity Commission Act 1986 (Cth).

• Complainants can choose which forum to bring a complaint in although they are statute barred from bringing the same complaints in the federal jurisdiction if they have already done so before the VEOHRC

Anti-discrimination legislation continued

• Section 4 of the EO Act specifies that 'detriment' includes 'humiliation and denigration' but does not exhaustively define 'detriment'. Detriment has been found to include:

– Harassment, or 'depriving an employee of quiet enjoyment of employment' (Candan v Holden Ltd & Ors [2000] VCAT2300) ;

– Being laughed at, or smirked at, by fellow employees (Packer v Vagg and the Department of Education [2001] VCAT 2218)

• Gama v Qantas Airways Ltd (No.2) [2006] FMCA 1767

Public Administration Act

& Code of Conduct

• Public officials should demonstrate respect for colleagues, other public officials and members of the Victorian community by:

(i) treating them fairly and objectively; and

(ii) ensuring freedom from discrimination, harassment and bullying.

PAA Continued• The Code of Conduct proscribes 'misconduct' (defined in the PAA to

include behaviours as set out in the Code). Sanctions are found under s 22 of the Public Administration Act. Section 22 provides that 'misconduct and serious misconduct' may result in penalties including:

– Reduction in salary – Reduction in classification (demotion)– Suspension– Dismissal

• Employees could bring a bullying complaint under the PAA on the basis that they have a statutory right to being treated fairly and to be protected from discrimination.

• Employees also have a ‘Review of Actions’ right pursuant to s 64 of the PAA.

Public Administration (Review of

Actions) Regulations 2005

• If the employee is not happy with the initial review conducted pursuant to the PAA, they can seek a review of the initial decision from the Public Sector Standards Commissioner.

Victorian Public Service Workplace

Determination 2012

• Public service employees are also covered by the Victorian Public Service Workplace Determination

– Workload negotiations under Part 12;

– Misconduct under Part 19;

– Dispute Resolution (grievance under Determination) under Part 11.

Workers’ Compensation Laws• If a worker has sustained an injury arising out of or in the

course of their employment, they may lodge a workers’ compensation claim.

• The worker can claim:

– Medical expenses– Weekly wages– Lump sum amount– Etc.

• In respect of a psychological injury, there is no entitlement to compensation if the injury is caused wholly or predominantly by management action taken on reasonable grounds and in a reasonable manner.

The Fair Work Act 2009

• General Protections

– Ramos v Good Samaritan Industries (No2) [2011] FMCA341

– Reverse Onus

• Unfair Dismissal

– Harley v Aristocrat Technologies Australia [2010] FWA 62

– O v Townsville Aboriginal & Torres Strait Islander Corporation Health Services [2012] FWA 2713

Occupational Health and Safety legislation

Employers

• Section 21 - provide and maintain safe working environment.

• Section 22 - monitor health of employees and conditions of workplace.

• 'Reasonably practicable'

Employees

• Section 25 - reasonable care of their own health and safety, and of others, and cooperate with actions of employer taken under the Act.

• Section 144 – direct liability of officers for failure to take reasonable care.

• These obligations under OH&S Act are criminal sanctions.

• Maximum penalties:

– body corporate - $1.3m

– Individual - $260,000

OHS Continued

WorkSafe

• Powers include:

– Production of documents

– Improvement notices

– Prohibition notices

• Investigation � prosecution

Worksafe Victoria v Ballarat Radio Pty Ltd,

unreported, Ballarat Magistrates Court (August 2004)

• Employee at the Ballarat Radio station had been physically and verbally abused by a radio announcer.

• Conduct was serious, repetitive, and extended over a period of time.

• Radio announcer - convicted and fined $10,000 for intimidating co-workers and for failing to take care of the health and safety of others in the workplace.

• Broadcasting company - fined $25,000 for failing to provide a safe workplace, and a further $25,000 for failing to provide instruction, training, and supervision in relation to bullying.

WorkSafe Victoria v Kevin Andrews

(2013)

• “Disgusting and appalling” behaviour with “harrowing and profound” effects on staff.

• Called employees “porky”, “wog” and “big fat bush pig”.

• Referred to women as “dogs” who are “only good for one thing”.

• Grunted and yelled at staff, threw things, hit employees’ desks with a stick.

• Fined $50,000 and ordered to pay costs of $50,000.

Woolworths Ltd v Sisko [2013] NSWWCCPD 38 (16 July 2013)

• Requests for support were refused or unanswered.

• The worker attempted suicide.

• The employer was found at fault due to heavy workload, lack of assistance, and aggressive treatment by management.

• Woolworths ordered to pay weekly compensation and ongoing medical expenses.

Production of Documents

• Documentary evidence of a breach makes defence of a charge under OH&S Act very difficult.

• Internal documents may be required during WorkSafeinvestigation.

• Potential way to avoid this is by legal professional privilege.

Brodie’s Law

• Previously, the only avenue for prosecution of workplace bullying was the Occupational Health &

Safety Act 2004 (Vic).

• No option for custodial sentence.

• Amendments to s 21 of the Crimes Act 1958 (Vic) includes the following conduct in the definition of stalking:

– Making threats to the victim

– Using abusive or offensive words to, or in the presence of, the victim

– Performing abusive or offensive acts in the presence of the victim

– Directing abusive or offensive acts towards the victim

– Acting in any other way that could reasonably be expected –

• To cause physical or mental harm to the victim, including self-harm

• To arouse apprehension or fear … with the intention of causing physical or mental harm to the victim, including self harm …

• A new definition of ‘mental harm’, to include psychological harm and suicidal thoughts.

• Maximum penalty: 10 years in prison.

• Brodie’s Law sits at the top of the hierarchy of legal responses to workplace bullying.

• Potential of intervention orders to cause disruption in the workplace.

Tips

Policies need to be clear and

address unacceptable

behaviour

Vague or perfunctory

instructions at the start of

employment are simply not

enough

It should be noted that

policies can be incorporated

into an employee's employment

contract

Ongoing education of

staff is vital to ensure

compliance and to avoid the evolution

of a toxic work culture

Organisational policies and strategies need to be

enforced and sanctions

made against perpetrators

Don't ignore the actions

simply because the

alleged bully is a Senior

Manager or a valuable

employee

Don't promise to keep

allegations confidential

Use objective

investigators

Respond quickly and

with due seriousness to

bullying allegations