The National Bullying Code and the Fair Work Act How do they interact? Sandra Dann Working Women’s Centre SA Inc For Stand Up for Health and Safety Conference 21 June 2013

Kaurna Acknowledgement We acknowledge that the land we meet on today is the traditional land of the Kaurna people and that we respect their spiritual relationship with their country. We also acknowledge the Kaurna people as the custodians of the Adelaide region and that their cultural and heritage beliefs are still as important to the living Kaurna people today.

What determines respectful workplace cultures? Fair Work Act 1994 (State) Fair Work Act 2009 (Commonwealth) Fair Work Amendment Bill 2013 (Clth) WHS Act 2012 (SA) + Regulations and Codes Equal Opportunity Act 1984 & 2009 (SA) Australian Human Rights Commission Acts (Clth) Criminal Law Workplace policies Community standards Common sense

Which Acts? Which Code? Fair Work Act (SA) – limited coverage, em/ees covered by this (State and local Gov’t, non constitutional corporations) have no coverage under the proposed Commonwealth measures re wpb. Fair Work Act Amendment Bill 2013 (Clth) - not yet law, debated in the Senate this week. Safe Work Australia Preventing and Responding to Workplace Bullying Draft Code of Practice – Work Health and Safety Act 2012 (SA).

Work Health and Safety Act 2012 (SA) Harmonised with other States and Territories. Must ensure so far as is reasonably practicable, the health and safety of workers ie any 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. Greater emphasis on everyone to exercise due diligence. Includes psychosocial health. Union right of entry for work health and safety purposes. Enforceable undertakings to enforce compliance.

Codes of Practice Provide practical guidance on how to meet the standards set out in the Act and Regulations. Are a tool to help PCBUs comply. Are admissible in court proceedings as evidence of whether or not a duty has been complied with.

Draft Code of Practice wpb Open for public comment until Monday 15 July 2013. Regulation Impact Statement supplied. All written submissions will be analysed. Safe Work Australia will review and as necessary revise the Code. Revised Code will then be considered by the Ministerial Council for adoption as a model Code of Practice.

What is Workplace Bullying? Defined in the Code as ‘repeated and unreasonable behaviour directed towards a worker or group of workers that creates a risk to health and safety’. Code gives examples. Does not include single incidents or workplace conflict (but does acknowledge that this can escalate to bullying).

Proposed Code Spells out the impact of bullying. Sets out what is not workplace bullying. Talks about the intersection with discrimination and harassment eg on basis of pregnancy. Spells out who has duties – ie everyone! Includes how to manage the risk, consultation and how to prevent and respond to bullying at the workplace level. Allows for complaints to the WHS Regulator to inspect/investigate.

Proposed Code Scope and Application Introduction Preventing Workplace Bullying Responding to Workplace Bullying Investigations Appendix A – Example of a Workplace Bullying Policy Workplace Bullying – a Worker’s Guide

Fair Work Amendment Bill 2013 Captures outcomes of the review of the Fair Work Act. Amendments include Anti-bullying Measure and Right of Entry amongst others.

Prevention of bullying in the workplace Amendments in Schedule 3 are part of the Government’s response to the report from a recent inquiry by the House of Representatives Standing Committee on Education and Employment into workplace bullying. General agreement on the need for measures to prevent bullying. Less clear what these measures should be. FWC seen as appropriate body to handle complaints as it already has processes that are understood, relatively speedy and not costly. Premise that workers who are bullied should have a right to seek remedies through an adjudicative process.

Positions of Major Interest Groups Largely negative from employer groups – ACCI, BCA and AiG ‘a missed opportunity for genuine reform, rushed process, not sufficiently consultative, doesn’t implement most pressing recommendations, and Bill is biased’. AMMA ‘more litigation, more disputation and more confusion’. Support from ACTU but notes that some of the measures do not go far enough. Welfare groups support family friendly measures and measures to address workplace bullying.

What are the measures? Inserts a new Part 6-4B and consequential amendments. Will provide for a worker who has been bullied at work to apply to the Commission for an order to stop the bullying. Will take effect from 1 January 2014. Provisions give rights to a ‘worker’ rather than an ‘employee’.

What are the measures? (cont) The definition of ‘worker’ for these provisions refers to the definition in the Work Health Safety Act 2011. Excludes a member of the Defence Force. To access a remedy the worker must be ‘bullied at work’.

What are the measures? (cont) Definition encompasses not only the form of conduct that is actionable but also the constitutional source of power relied on for these provisions: A worker is bullied at work if: while the worker is at work in a constitutionally covered business: an individual; or 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.

What are the measures? (cont) (2) To avoid doubt, subsection (1) does not apply to reasonable management action carried out in a reasonable manner. (3) If a person conducts a business or undertaking (within the meaning of the WHS Act 2011) and either: the person is: a constitutional corporation; or the Commonwealth; or a Commonwealth authority; a body corporate incorporated in a Territory; or (b) the business or undertaking is principally conducted in a Territory or Commonwealth place; then the business or undertaking is a constitutionally-covered business.

How will the new measures work? An application is made to the FW Commission. FWC is obliged to start to deal with it within 14 days. FWC has discretion to dismiss an application if it considers it might involve matters that relate to Australia’s defence, national security or certain operations of the Australian Federal Police.

How will the new measures work? This discretion is echoed in a series of specific exemption provisions which permit the Chief of the Defence Force, the Director General of Security or the Director General of ASIS to declare by legislative instrument that some or all of the provisions in the Part do not apply to particular activities or persons.

How will the new measures work? FWC must be satisfied that the worker has been bullied at work and that there is a risk that the worker will continue to be bullied at work by the same individual or group. The power to make an order is discretionary, not mandatory. The types of orders the FWC may make are open ended but designed to prevent the worker from being bullied at work and cannot involve the payment of a pecuniary amount.

How will the new measures work? In making an order the FWC is obliged to take into account: The final or interim outcomes arising from any investigation of which it is aware; Any procedure available to the worker to resolve grievances and disputes, and any interim or final outcomes arising out of such a procedure; and Any other matter it considers relevant. Where an order is made, a contravention of that order is enforceable through the usual civil enforcement framework.

How will the new measures work? A separate provision provides an exemption for the usual effect of section 115 of the WHS Act, which would be to prohibit civil action for discrimination or coercion in connection with the exercise of rights under that Act where an application had been made elsewhere concerning the same conduct. That exemption is also expressed to apply to the corresponding provisions of ‘corresponding laws’ as defined in that Act.

Summary We live in interesting times. Federal election looming. Very political environment. The new measures will not suit everyone. We will need to get used to a new way of working re ‘stop bullying orders’. Ensuring the effectiveness of the new FWC measures and the proposed Code is up to all of us. Preventing wpb remains the best approach.