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SafeWork Australia last week released it’s much-awaited Guide for Preventing and Responding to Workplace Bullying, just weeks before the new anti-bullying measures in the Fair Work Act come into force.
But rather than being the Code of Practice that it was originally intended to be, the agency has confirmed that its status as a Guide means that it will have no automatic evidentiary value in court.
This means that unlike a Code, complying with the Guide does not automatically mean that a company has complied with the legislation.
So does this mean the Guide is worth following? Well, yes.
Despite not having the influence of a Code of Practice, the Guide sets a clear national benchmark on how organisations across Australia should define, prevent, respond and investigate cases of alleged workplace bullying.
Because the Guide approaches bullying from a workplace health and safety perspective, it ties bullying into the Work Health and Safety Act principles. The employer is required to assess the potential for bullying in their organisation “risk assessment”, and should consult with workers in order to make that assessment, as well as in identifying and implementing actions to minimise the risk of bullying occurring.
The Guide helpfully provides an outline of the types of situations which may give rise to bullying, as well as the mechanisms an employer should consider to prevent the bullying occurring. It also goes on to provide quite detailed recommendations for responding to bullying by the organisation, including how to investigate a bullying allegation (promptly, confidentially, and fairly).
While the Guide is designed for the workplace health and safety jurisdiction, it is highly probable that it will also serve to assist the Fair Work Commission in resolving bullying allegations.
So for an employer feeling the big dark cloud of potential bullying claims, following the quite commonsense advice in the Guide is very likely to provide them with some level of security in preparing for the new bullying laws as well as safeguarding the health and safety of their workers.
From January 1 2014, the new laws will allow all workers to take workplace bullying complaints to the national industrial tribunal, the Fair Work Commission.
Any worker who reasonably believes he or she has been bullied can seek an order from the Commission for the bullying to stop. The Commission can also make related orders, such as requiring training.
Despite the Commission being able to award compensation, if an employer does not act to stop the bullying (after an order has been made) workers can apply to the Federal Court, which can impose fines of up to $51,000 on an organisation and $10,200 on an individual.
Employers need to be mindful that probably as a consequence of media focusing attention on the new laws, the awareness among employees about bullying is increasing.
Safe Work Australia’s has also published a Worker’s Guide to bullying to accompany the formal Guide.
How can CompliSpace help?
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This blog is a guide to keep readers updated with the latest information. It is not intended as legal advice or as advice that should be relied on by readers. The information contained in this blog may have been updated since its posting, or it may not apply in all circumstances. If you require specific or legal advice, please contact us on (02) 9299 6105 and we will be happy to assist.
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