New bullying laws and the NFP sector

On 1 January 2014, the latest changes to the Fair Work Act 2009 (Cth) (‘Fair Work Act) came into effect, including Australia’s first anti-bullying laws.

Individuals who feel that they are being bullied in the workplace can now lodge an application in the Fair Work Commission (Commission) seeking an order that the alleged bully/bullies stop the offending behaviour or that the operators of that workplace take steps to investigate and stop the offending behaviour.

Bullying is defined as repeated and unreasonable behaviour that is directed towards a worker or group of workers that creates a risk to health and safety.

While the Commission can order a bully to stop engaging in the offending behaviour, it cannot make an order for financial compensation. Nevertheless, penalties may be issued where an individual ‘bully’ or an organisation fails to follow orders made by the Commission.

Why is this important to a Not-for-Profit organisation?

The anti-bullying laws have a much broader coverage than most other parts of the Fair Work Act. NFPs that are not subject to other claims under the Fair Work Act (eg unfair dismissal) will be subject to the anti-bullying laws and so it is prudent that your organisation determines whether or not it is covered.

Does it affect your organisation?

To determine whether you could be subject to an anti-bullying claim, consider the following questions:

Is your organisation a ‘constitutionally covered business’; and is the person making the complaint a ‘worker’?

A constitutionally-covered business is defined to include:

  • A constitutional corporation, which is a company or business that engages in trading and financial activities. Many charities and other NFP organisations are classified as trading corporations even if the organisation operates for a charitable, rather than trading, purpose. For example, the courts have previously found the RSPCA, the Red Cross and other NFPs to be constitutional corporations.
  • A company limited by guarantee also comes within the definition of a constitutional corporation.
  • A body corporate incorporated in a Territory, which includes, for example, any organisation that has been incorporated under the Associations Incorporation Act 1991 (ACT).

The Commonwealth and Commonwealth authorities

In effect, the only NFP organisations that are expressly excluded from the bullying laws are volunteer associations that do not have any employees ie only volunteers.

The following types of workers will be eligible to make an anti-bullying claim

In recognition of the fact that bullying is an issue common to all workplaces and organisations, the anti-bullying laws use the definition of ‘worker’ in the Work Health & Safety Act 2011 (Cth) rather than simply applying to employees.

This broad definition of ‘worker’ means that, unlike other sections of the Fair Work Act, persons such as volunteers, students on work experience, visitors to the workplace and contractors will be able to bring a bullying claim.

What you can do to minimise the risk of a bullying claim in your organisation

Once you have determined whether your organisation is covered by the anti-bullying laws, the next step is to review your existing policies and procedures for dealing with bullying and harassment complaints, and provide training and guidance to your staff on these issues.

While there have been no decisions or orders made under the anti-bullying laws, directions released by the Commission to date suggest that organisations and workplaces that follow a consistent and fair complaints procedure will not be sanctioned. Accordingly, the implementation of (and compliance with) a comprehensive bullying policy will be your most effective defence to any claim made in the Commission.

For further information on how the bulling laws may affect your NFP organisation, please contact:

Hugh Chalmers — Partner — Employment, Industrial Relations & Safety Team
(02) 6279 4451
hugh.chalmers@meyervandenberg.com.au

Emma Vautin — Lawyer — Employment Industrial Relations & Safety Team
(02) 6279 4363
emma.vautin@meyervandenberg.com.au