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The much-awaited Code of Practice that was set to dictate how employers should deal with bullying claims has been abandoned.
Despite two drafts of the Code of Practice for Preventing and Responding to Workplace Bullying being put out to public consultation, and encountering some major redrafting, Safework Australia has now signalled it will now only have the status of a Guide.
Despite this, an employer (or PCBU) can still be prosecuted by work health and safety regulators for breaching their duty towards workers if they have not taken all reasonably practical steps to prevent and manage bullying. Bullying claims will also be handled by the Fair Work Commission from 1 January 2014, where part of the definition of bullying is that it poses a risk to health and safety.
There was argument that the Code would be too prescriptive. But by not having one, employers will have no clear guidance on what they need to do to comply with their duty of care towards workers in relation to bullying. Employers will also be unable to rely on compliance with a Code of Practice as their defence against a bullying prosecution under work health and safety legislation.
The new bullying Guide will have no evidentiary value in court. If a party wants to use the Guide as evidence of compliance, they must first apply to the court. A Code of Practice would have automatically been used as the default criteria for compliance with legislation.
Safework Australia is expected to confirm this at the next meeting of its peak consultative body on November 14, which consists of representatives from the Commonwealth, States, Territories, employer organisations and the ACTU.
Given there will now be at least two avenues to pursue an employer for not preventing or managing bullying, and no formal standard to help them, all employers should ensure that they have policies, training, and assurance systems in place to protect their organisations from bullying leading to stress claims, absenteeism, grievances, industrial action, and general damage to their productivity and reputation.
How can CompliSpace help?
CompliSpace’s comprehensive range of cost effective human resources policies, procedures, training and testing modules, ensure that managers and staff know what is expected of them and have key tools and information at their fingertips at all times. This enables a business to meet its workplace relations obligations while building a positive corporate culture, capturing knowledge and saving time. For more information, contact us on the details below:
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