Introduction
The Fair Work Amendment Bill 2013 introduced several amendments that were not in the Act before. The bill aimed at giving the workers the opportunity to be protected from any form of bullying that they may be subjected to at their workplace. The most celebrated part of the Bill is the introduction of arrangements that made it possible for the rights to be attained. The fact that the workers are free to report any form of bullying to the Work Commission has enhanced a reliable mechanism that fosters trust and promotes a favorable working environment for the workers. The amendments came into force in January 2014, thereby necessitating the companies to revise some of the policies to ensure that they are in line with the amendments. The policies are supposed to ensure that there are internal changes in the processes that are required to ensure protection of the workers (Feeley 2013, p. 62). The complaints of the workers are now taken with extra seriousness in that they are resolved in the shortest time possible. The amendments created a situation whereby the workers feel free to approach the Worker’s Commission when there is a case of bullying. The amendments are rooted in the government’s response after the House of Representatives came up with a report stating the measures to be followed s to reduce the cases of bullying in the workplace. After the enactment of the Bill, even workers who were bullied before are able to apply to the Commission for their matters to be adjudicated.
Main Body
The amendment opens with a definition of a worker, which is not confined to an employee only. The amendment puts into consideration the provisions of the Workers Health and Safety Act, 2011 for an extensive meaning of a worker. It should be noted that a defense forces officer is expressly excluded from benefiting from the Act. The Commission in the amendments is given the power to weigh the application and dismiss it if considers the application to breach the national security. The Act does not restrict any person from taking any appellate action if dissatisfied by the decision of the Commission (Field 2011, p. 84).
The definition of bullying a worker is provided under the amendments to mean any unreasonable behavior by an individual towards another person, where the conduct is a risk to the worker being bullied. However, the law does not interfere with management’s actions that are deemed reasonable against employees. The procedure in the Commission is to ensure that the complaint is dealt with in 14 days after it has been filed. The evidence provided before the Commission must clearly show that the employee was exposed to harm through the act of another employee or the supervisors. Similarly, it should be clear that there is possibility of the act of bullying recurring in the future. The Commission has the discretion to make an order instructing that the worker will not continue being harassed. The provisions in the amendment protect a worker who makes an application in the Commission. In addition, such worker is not barred from making another application pursuant to the safety legislation.
There are a couple of friendly rights that have been introduced to ensured comprehensive protection of the rights of workers in Australia. The amendments in the Act also introduced measures that reach as far as the family level in the effort of protecting employees extensively. Before the coming into force of the legislation, there was no Act in Australia ensuring protection to the workers against bullying. The amendments have instilled a sense of dignity to ensure that there is decorum at workplace. The report by the House of Representatives indicated that there was a low value on self-worth in employees due to bullying. An all-encompassing law in Australia dealing with bullying was realized after the amendments became part of the law. The law has provided several classes of workers, according to the Work Health and Safety Act, 2011. The contractors, sub-contractors, trainees, and volunteers were brought under the protection of the Act.
Under the new laws, the unreasonable treatment of a worker amounts to bullying if it fulfills the following qualifications. Firstly, the behavior must be repeated. Secondly, the behavior must be unreasonable. Thirdly, the behavior must be of such a nature that it creates a risk related to health. The exception to unreasonable behavior applies where there is management action. Such conduct should not classified as an act of bullying. The jurisdictional objection is not in any way based on the defense that is raised. The Fair Work Commission has the mandate to ensure that there is fair treatment of all workers. The Commission has been given extensive powers that never existed before. It has the powers to make orders against an employer where there is evidence suggesting the existence of bullying. This is a new development that was never there before and has helped in protecting the rights of the worker. The only drawback in the orders of the Commission is that they are interim or interlocutory in cases where such orders relate to pecuniary damages. The Commission is entrusted with the mandate of ensuring that the employer is stopped from performance where the bullying is manifest, unless it is resolved. The Fair Work Commission has powers to make orders where the initial orders are not respected. Although the Commission is in a position to order the management of an organization to stop harassing the employee, it may still use the Federal Court to push the employer to comply with the provisions of the amendments. The employer is restrained from any form of noncompliance when an application is made by the Commission before the Federal Circuit Court. Breaching the Commission’s orders may attract penalties in some circumstances.
There is a new definition of being bullied at work, which has provided a new dimension that was not there before. Some of the sections in the Fair Work Act amendments are in agreement with other codes provided to help protect workers from workplace harassment. One such section is the Section 789FD, which is in line with the guidelines provided in the proposed code of practice of the Safe Work Australia. The acts that amount to unreasonable behavior have the elements of being humiliating, victimizing, intimidating, and threatening. According to the amendments, the behavior that amounts to bullying may either be intentional or unintentional. Such acts are considered bullying acts if they are repeated, unreasonable, and they have a tendency of creating an unhealthy working environment to a worker or workers. The anti-bullying amendments have ensured that the health of the worker is protected by ensuring that measures such as abusing, insulting, or offensive language is prevented from occurring at the workplace. Secondly, the unjustified criticism and complaints are barred. Thirdly, the changing of the deadlines unreasonably and constantly is also considered bullying and it is prevented by all intents and purposes. Fourthly, any spread of malicious rumors and misinformation of a worker is considered to be a form of bullying.
Lastly, the employer’s change of the working arrangements to the disadvantage of an employee is discouraged. Such changes amount to bullying when they act as inconveniences to some of the workers. The healthy living of an employee is prevented if the employer is protected from the above mentioned nature of behaviors. The employers are supposed to ensure that they understand the scope of their duties and the powers that have been bestowed on the Commission to ensure that they prevent the bullying. The employers are also obligated to put in place policies that clearly state that bullying is unacceptable. The allegations at the workplace should also be addressed promptly, where they clearly introduce the bullying elements of the workers. Failure to address the concerns in a prompt manner may subject the worker to a myriad of health challenges, which may eventually exacerbate the risky situation. The employers are under a duty to conduct health checks and to ensure that the behavior of employees suspected of being bullied is investigated and an immediate solution provided (Van Gramberg 2005, p. 25).
The measures brought about by the law are not only based on ensuring that there is compliance of the employers where cases of bullying are reported, but it also increases the productivity of an employer in a given case. The most essential step to stop bullying has also ensured that the productivity of the workers is improved greatly. The dangers that are attributed to bullying are completely dealt with and it becomes easier to monitor other risks in a situation where bullying is stopped. The idea of restraining an employee from any type of bullying is essential in a working environment (Arbuckle 2013, p. 43). The acts that would have, otherwise, resulted in health risks are brought to a stop where there are experiences that put the employee at a risk. The health and safety concerns that have been addressed in this case are of such that the worker is bound to report any incident that qualifies as bullying. The Act has set the pace for a new opportunity for the bullied workers to get a chance to be heard and their grievances addressed by the Commission. The situation has covered a range of abuses that remained uncovered in the old regime of laws. The protection has proven instrumental in curbing bullying, given that bullying cases were rising with fewer remedies in place. The health and the safety of workers were highly put at a compromise with the coming into force of the amendments to protect workers from all types of bullying. The fact that workers have numerous rights that require the protection of the law opens up a new chapter in the workers’ rights prevention against any forms of abuses (Australia and Marshall 2013, p. 87).
The amendments have incorporated family friendly provisions that go to the root of the general health of a worker. Given the circumstances, the employee has an opportunity to ensure that family-friendly measures are put in place. The measures should not be unfriendly to the general working of an employee. In such cases where the employee has family based commitments, the employee has the freedom to as ask for more flexible working hours. The amendments give the employee the chance to ask for change at work and to make arrangements if the worker is a parent and has the responsibility of taking care of child who is of the school age (Oade 2009, p. 76). Further, a person who is categorized as a carer under the Carer Recognition Act, 2010 can also seek the protection of the law (Namie and Namie 2011, p. 53). The amendment also allows such applications to be made in other cases where the person has a disability and is 55 years of age. The broad way of the Act allowing a member who is employed but suffering from any form of mistreatment or violence in the family is also catered for under the amendment. Further, if the member of the family provides care and support to another member of the family, such a member is also given a chance to have arrangements under the Act, which are geared towards coming up with the right measures to care for the employee’s welfare (Csiernik 2014, p. 71). In addition, an employee is still eligible to refuse a request to transfer if there are reasonable grounds that working in the given environment will be impractical (Field 2011, p. 90).
The most practical aspect introduced by the amendments is the nature of protection against the change of an employee from one type of duty to another (Wilson 2012, p. 25). The changes are in the sense that the employer is barred from effecting a transfer to a person who is not fit to do a certain type of job. The requirement of consultation before any of the transfers can be allowed is designed to ensure that the essential changes do not affect the employee negatively. In addition, the employer cannot transfer an employee without consulting the employer. On the same note, the amendments require that any transfer involving a woman should be to a safe job. The working of an employee should be of such a nature that it does not adversely affect his or her health. This protection is mainly a way of ensuring that women are given an opportunity to tackle their parental responsibilities effectively (Teicher, Holland, and Gough 2013, p. 63).
The provisions in the amendments are created with care, whereby there are entry provisions that provide some basic rights to employees. In this case, the Commission is given an opportunity to deal with all natures of disputes, including where the entry of the employer and employee is expected with an intention of conducting discussions to end their disputes. If the employer and the employee are put at a task of ensuring that they reach an amicable decision about a given matter, then the employee should be provided with the necessary accommodation and transport arrangements. The mandate of the Commission has been extended to cover cases where the employee requires additional remuneration. The Australian legal regime has provided a way of dealing with the irregularly and the unpredictable ways in which the employees may be treated at their respective employment. The bullying of workers by their peers or the employees has existed for some time in Australia. The lack of a specific law to deal with the issue has been a critical point that has ensured employees are offered the essential protection that is desired to promote their productivity. For the employees to be protected against any form bullying under the old regime, they were supposed to have provisions under the health and safety laws in effecting such protection. The failure of the laws to provide a specific Act has been a hard task that has subject the employees to a lot of trouble in the given situation (CCH Australia 2010, p. 54).
The employees are now protected by a law that is specific on bullying. The underlying advantage of the protection against bullying is that it has also dealt with other forms of employee harassments that are not allowed. The law ensures that there is a mode of solving any form of disputes, which is a strong aspect of the anti-bullying Act (McCarthy 2001, p. 76). The involvement of the Commission is a great opportunity to ensure that there is the involvement of the employer and the employee in dispute resolution The Commission acts as an umpire and it has extensive powers to make orders if it is clear that the employer has breached his duties to ensure that the employees are protected from any form of bullying (Privitera 2011, p. 43). The employee has the freedom to make a complaint, which is considered within 14 days and the Commission should come up with its report on whether there is a case to answer.
The fact that the employee has suffered bullying is considered against the surrounding factors. Under such cases, the employee is given a chance to provide a working mechanism that is aimed at eliminating any form of bullying (Alibekova and Campbell 2007, p. 24). If the employer has been found guilty of such offences, the Commission has the powers to make an order against the employee, which should be enforced through a Federal Circuit order on the initial order. The set space for the making of orders ensures that the employer complies within the prescribed time. The Commission has the powers to ensure that the orders made are complied with wh. The protection of the employer and the employee from any bullying is very essential. The set standards by the Commission have promoted a favorable working environment that is lasting and reliable. The Commission has promoted the anti-bullying mechanisms that are at the heart of a healthy and safe working environment (Forsyth and Stewart 2009, p. 98).
The bullying of employees is a vice that has existed in Australia for a long period of time. The most notable area of interest has been to promote a health and safe working environment. The essential duties of the Commission is that it takes the rights of the employee to a stage where the rights are protected. Given the powerful nature of the employers, it is crucial to have a body that defends the rights of the employees. The bullying of employees has greatly affected the health and safety of the employees. The achievements of the amendments have superseded the provisions of the Act that existed in other legislations. The safety of the employees is of great impact to the improvement of their working environment. There are many ways in which bullying is becoming a forgotten issue. The Commission has promoted the existence of an effective mechanism that is reliable and likely to have a huge effect in the long run. It is worth noting that the legal changes that have been brought are not likely to bring about instant changes in workplace environments, but the changes will be realized in the long run. There is a strong suggestion that some of the workers are still facing the bias treatment and bullying at their workplaces. The function and the implementation of the amendments are yet to attained, thus in the long run some of the members of the working community will have to go an extra mile to have their grievances adjudicated by the Commission. The reasonable test that identifies an act as bullying is still lacking a lot of the key ingredients that are at the peak of ensuring that there is risk of health and safety (Michelson, Jamieson, and Burgess 2008, p. 56).
Conclusion
For a long time, bullying had existed without any specific law dealing with the ways of curbing it. The period has been terminated by the coming into force of the amendments that are geared towards getting a single Act preventing the bullying of employees. The Act has diversified the conducts that can be classified as forming part of the prohibited bullying of employees. The bullying cases have reduced significantly with the reasonable standards that are in place. The Commission has come up with mechanisms of ensuring that there is a way of finding solutions to the bullying related cases. The investigative role of the Commission is a key point to note as it has made it stand the test of time. The bullying cases in the working environment have existed without a specific law to address the grievances, but now the amendments to the Fair Work Act, 2009 have dealt with the workplace bullying by instituting effective anti-bullying measures that have seen workplace bullying drop significantly.
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