Legal: Stop bullying orders

One of the significant changes brought about by the new Industrial Relations Act 2016 (the act) is the introduction of new powers enabling the Queensland Industrial Relations Commission (QIRC) to deal with bullying in the workplace.

The new act, which applies to employees of the State of Queensland, empowers the QIRC to make orders preventing workplace bullying – to be known as “stop bullying orders”. The new provisions are modelled on those in the Fair Work Act 2009. Stop bullying orders have been available under the Fair Work Act since the beginning of 2014, but until now, state employees in Queensland have been unable to make applications.

What is bullying?

A worker is bullied in the workplace if, while at work, an individual or group of individuals repeatedly behaves unreasonably towards the employee or a group of employees of which the person is a member, and this creates a risk to the health and safety of the employee.

To meet the definition:

  • the person alleging bullying must be an employee (s.272(1) of the act)
  • the behaviour must take place while the employee is at work (s.272(1)(a))
  • the behaviour must be directed towards the employee or a group of employees of which the employee is a member (s.272(1)(a)(i) and (ii))
  • the behaviour is not a one-off – it must have already happened, and there must be a risk that it will continue (s.272(1)(a))
  • the behaviour must be unreasonable (s.272(1)(a))
  • the behaviour creates a risk to the employee’s health and safety (s.272(1)(b)).

Single incidents of unreasonable behaviour should not be ignored or allowed, but they are not considered bullying.

The concept of “risk to the employee’s health and safety” is not defined in the act, but applications made under the Fair Work Act 2009 have established that it is not necessary to provide proof of actual harm to health and safety, as long as it can be shown that a risk to health and safety created by bullying behaviour exists. The risk must be real, and not merely conceptual, but does not have to be imminent.

What is not bullying?

Actions that are reasonable management action carried out in a reasonable manner are not bullying (s.272(2)).

Reasonable management action can include making decisions or giving directions about performance, applying disciplinary action, or giving directions about the way work is carried out.

The concept of “reasonable management action” also appears in the Workers’ Compensation and Rehabilitation Act 2003, where it operates to prevent workers from receiving compensation if they sustain psychological injuries as a result of the reasonable actions of their employers. While the new bullying provisions are as yet untested, it can be assumed that this term will be interpreted in the same way.

What can the QIRC do?

The legislation is focused on delivering an immediate response to recent circumstances to prevent bullying in the future. The QIRC has been given broad powers to enable it to easily and quickly deal with applications for stop bullying orders. It can make any order it considers appropriate to prevent the employee from being bullied in the workplace (s.275(2)), but only if it is satisfied that the employee has been bullied in the workplace, and there is a risk that the employee will continue to be bullied in the workplace.

Importantly, if a stop bullying order is made, it does not entitle the applicant to any form of compensation. The orders are designed to be preventative, not punitive or compensatory.
Should an order be breached, an application for a civil penalty against the bullying party can be made to the QIRC.

When will the QIRC dismiss an application?

If the member cannot show that their application meets the definition of bullying, it is bound to fail.

If the bullying conduct has occurred months or years in the past, with no recent occurrences, the application is likely to fail as the member will not be able to show that there is a risk it will continue.

Conduct prior to the act’s commencement date of 1 March 2017 can be considered, so long as there is a risk the conduct will continue or be repeated after 1 March 2017.
The QIRC will also consider what other avenues are available to the employee to deal with the behaviour. For example, if the QIRC considers that an investigation or grievance procedure being conducted is adequate, it may determine that a stop bullying order is unnecessary.

Rachel Drew                                                                                                                     Holding Redlich Lawyers

Queensland Teachers' Journal, Vol 122 No 4, 2 June 2017, p27