Bullying - Legal Standards
Occupational health and safety law
There is nospecific occupational health and safety regulations which covers bullying, or makes it specifically illegal for bullying to occur. Bullying is not specifically addressed in either the OHS regulations or codes. However, under Section 21 of the Victorian
Occupational Health and Safety Act (2004), employers have a general duty care to provide and maintain for employees, as far as practicable,a working environment that is safe and without risks to health
While the duty of care of employers under the 2004 OHS Act is more or less the same as what it was under the 1985 Act, the definition of health was amended. The definition of 'health' is now as follows:
"health" includes psychological health
This means that the employer must address workplace hazards such as bullying, stress and fatigue. So while there are no regulations, WorkSafe Victoria has guidance on bullying, which is an acknowledged, and serious, hazard in workplaces. In 2012, WorkSafe Victoria replaced its previous guide, Preventing and responding to bullying at work with a slimmer publication: Workplace bullying - prevention and response. For more information from the regulator, go to the WorkSafe Victoria webpage on Workplace Bullying.
WorkSafe has a special unit, the psychosocial practice unit, which has inspectors who investigate claims of bullying.
In addition, injury or ill-health due to workplace bullying may become the subject of WorkCover claims or common law actions.
Some forms of bullying may constitute assault and be an offence under the Crimes Act; and in legislation which extends the criminal offence of stalking (known as 'Brodie's Law') introduced in June 2011 bullying may be a crime. Loss of employment (whether dismissal or being forced to resign - effective dismissal) and victimisation may be covered by Workplace Relations legislation.
The bullying may also be a breach of sexual harassment and anti-discrimination legislation.
Employers and/or the bully may find themselves facing fines, compensation and possibly a jail sentence.
Since 1 January 2014, if a worker is being bullied at work, he or she has been able to apply to the national industrial commission (the Fair Work Commission) for an 'order' to stop that bullying. The changes to the legislation mean that the Commission must respond to such an application two weeks after it is received. Orders may be anything from directing the bullying behaviour to stop, to ensuring that all staff undergo anti-bullying training. If the person who is the bully does not follow they orders, they face very significant fines. The changes are designed to make sure workers who are bullied have access to fair, fast and effective mechanisms that will resolve the situation.
In November 2013, the Fair Work Commission released draft anti-bullying Case Management Model [pdf] which outlines the procedures and functions of the anti-bullying jurisdiction and has now released its Anti-Bullying Benchbook designed to assist parties to lodge or respond to anti-bullying applications, for public comment.
The Case Management Model does not appear to have been updated, but the Anti-Bullying Benchbook was updated in May 2015. The Commission says the Benchbook has been designed to assist parties lodging or responding to anti-bullying applications under the Fair Work Act 2009 (Fair Work Act). In particular, information is provided to parties to assist in the preparation of material for matters before the Commission.
This benchbook has been designed as an interactive website and works best in this form. However, it is possible to download a pdf copy from the website.
- ACTU information: New Fair Work Commission powers: A win for Workers.
- Fair Work Commission Anti-Bullying site
- FWC Anti-Bullying Research.
Last amended December 2017