New Anti-bullying Amendments to Fair Work 2009 : What does it mean - - PowerPoint PPT Presentation
New Anti-bullying Amendments to Fair Work 2009 : What does it mean for Government? Speakers Hayley Petrony , Assistant Victorian Government Solicitor Alison OBrien , Assistant Victorian Government Solicitor Rachel Amamoo ,
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
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:
person, having regard to all the circumstances, would expect to victimise, humiliate, undermine or threaten;
involve using a system of work as a means of victimising, humiliating, undermining or threatening;
health of the employee.
Worksafe Victoria Guidance Note
Section 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.
activities
performance
enough work
– 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.
May 2013]
include an implied duty of care.
similar to the duties owed by an employer in negligence, however the two sources of duty operate concurrently.
under contract, for breaches of duty.
(Brennan J)
– 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).
although they are statute barred from bringing the same complaints in the federal jurisdiction if they have already done so before the VEOHRC
'humiliation and denigration' but does not exhaustively define 'detriment'. Detriment has been found to include: – Harassment, or 'depriving an employee of quiet enjoyment
2300) ; – Being laughed at, or smirked at, by fellow employees (Packer v Vagg and the Department of Education [2001] VCAT 2218)
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
basis that they have a statutory right to being treated fairly and to be protected from discrimination.
the PAA.
course of their employment, they may lodge a workers’ compensation claim.
– Medical expenses – Weekly wages – Lump sum amount – Etc.
compensation if the injury is caused wholly or predominantly by management action taken on reasonable grounds and in a reasonable manner.
– Ramos v Good Samaritan Industries (No2) [2011] FMCA 341 – Reverse Onus
– Harley v Aristocrat Technologies Australia [2010] FWA 62 – O v Townsville Aboriginal & Torres Strait Islander Corporation Health Services [2012] FWA 2713
Employers
Employees
and cooperate with actions of employer taken under the Act.
abused by a radio announcer.
workers and for failing to take care of the health and safety of others in the workplace.
workplace, and a further $25,000 for failing to provide instruction, training, and supervision in relation to bullying.
profound” effects on staff.
with a stick.
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 –
physical or mental harm to the victim, including self harm …
thoughts.
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
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
investigators Respond quickly and with due seriousness to bullying allegations