It has never been more important for workplaces to be proactive around bullying, sexual harassment, and psychosocial hazards in the workplace.
As a starting point, it is important to revisit your policies and procedures and put some practical steps in place for your organisation.
What is Bullying under the Fair Work Act?
Most workplaces are dealing with behaviours, complaints, and issues around staff, but what is the definition of bullying under the Fair Work Act?
- Either an individual or a group that repeatedly behaves in an unreasonable manner to another person or persons whilst at work, AND;
- The action creates a risk to the health and safety of those affected, not limited to mental and physical health.
What constitutes bullying depends on the situation, however, it is well established that bullying can include, but is not limited to:
- Intimidation.
- Threats.
- Physical, verbal, or emotional abuse.
- Harassment.
- Being singled out.
- Victimization
- Being excluded from work-related events.
Regarding the necessity for the above examples to be considered bullying, it needs to be a 'repeated,' action.
Highlighting the importance of the matter, it's vital to understand that the act of bullying should occur repeatedly, and it's not a requirement for these occurrences to encompass identical behaviors. Instead, the assessment of 'unreasonable' behaviour rests on the perspective of an average person's interpretation.
In determining the risk to health and safety, it not only applies to the actual danger but also the potential for there to be a risk on the basis that it is of real concern and not just theoretical. It is important to note that there must be a link between bullying conduct and the risk to health and safety.
It is also important to note that the requirement for bullying to occur ?at work? is not limited to a physical location, but it can also include when a worker is engaged by an employer to perform a particular action. Additionally, being ?at work? can also apply during authorised breaks.
Finally, for bullying to exist, there must be a ?reasonable belief? that the bullying that has occurred and is supported by evidence or other rational grounds. Crucially, it has been noted that there are grounds that do NOT amount to bullying, due to a focus on a management plan being conducted in a ?reasonable manner? and can include (?What isn?t bullying at work? - Fair Work Commission):
- Performance appraisals
- Counselling/disciplining workers for misconduct
- Investigating misconduct
What do I do if I feel bullied in the workplace?
When it comes to raising bullying complaint, it is essential to raise the risk that the bullying will continue unless a formal complaint is lodged.
In addition to enumerating the forms of behaviour that qualify as bullying, it's significant to acknowledge the individuals safeguarded against such treatment in a workplace setting. While there are certain exemptions, it's observed that protection from bullying extends not only to employees and contractors, but also encompasses the employees of said contractors.
Moreover, it's deemed unlawful to engage in bullying as delineated by the (?Protection from bullying in the workplace? - Fair Work Ombudsman):
- Contractors
- Trainees/apprentices, and;
- Volunteers/work experience students.
What is Sexual Harassment and the recent changes to Employment Law in relation to Sexual Harassment?
Following the recent Respect@Work report and recent employment law reforms, there have been changes to the notion of sexual harassment in the workplace.
Such changes under the Sex Discrimination Act have made it an active obligation for employers and employees to take ?reasonable? and ?proportionate? measures to remove sexual-based harassment alongside sexual discrimination and other forms of harassment.
Sexual harassment occurs when a ?reasonable? person would ascertain that they are subjected to offence, humiliation or intimidation as well as either:
- Engaging in ?unwelcome? conduct that is of a sexual nature and is not limited to making a written or verbal statement, or;
- Making an ?unwelcome? sexual advance or request for sexual favours
In practice, this could include making sexual comments and jokes as well as asking intrusive questions about one?s physical appearance.
As mentioned earlier in the context of bullying, the same groups receive protection against sexual harassment. Nonetheless, sexual harassment takes an additional stride, as employers can be deemed vicariously accountable for their employee's actions if the behaviour was carried out 'in connection with' their job responsibilities.
Notably, an exception exists if the employer took all necessary measures to prevent workplace-related sexual harassment, hence the importance of workplace policy and training in relation to Sexual Harassment.
Furthermore, in contrast to bullying which necessitates multiple occurrences, a single instance of sexual harassment suffices for it to be deemed unlawful.
When it comes to lodging an order to the Fair Work Commission to stop sexual harassment, the person must still have a connection for the workplace as well as there existing a risk that it would occur again without intervention. However, if it was wished for the matter to be dealt with in a way aside from arbitration, there is no need for the person lodging the complaint to have a connection to work.
Psychosocial Hazards in the workplace
Psychosocial hazards in the workplace refer to factors that can potentially impact the psychological and social well-being of employees. These hazards encompass various conditions and interactions within the work environment that may lead to stress, mental health issues, and other negative effects on an individual's emotional and social state.
Examples of psychosocial hazards include:
- excessive workload
- inadequate job control
- lack of support from supervisors or colleagues
- workplace violence
- bullying, harassment
- organisational culture that doesn't prioritise employee well-being.
Addressing psychosocial hazards in the workplace is crucial for promoting a healthy and safe work environment that nurtures the mental and emotional health of employees.
To address these hazards, Work Health and Safety (WHS) legislation has been evolving to recognise and prioritise the psychological well-being of workers.
More recently there has been a growing emphasis on psychosocial risks within the realm of workplace health and safety. Numerous nations have acknowledged the significance of tackling mental health concerns at work, leading to the introduction or modification of legislation to encompass this awareness. A great resource for employers the model code of practice
Key components of a psychosocial management plan include:
- Psychosocial Hazard Policy: This robust policy offers a clear framework for managing psychosocial hazards, detailing employees' and managers' roles and responsibilities. The policy also provides valuable guidance on identifying and addressing psychosocial hazards in the workplace.
- Psychosocial Hazard Procedures: These step-by-step procedures enable seamless policy implementation, covering essential aspects such as risk assessment, communication, and monitoring and evaluation.
- Bullying Policy & Procedures: Offers clear guidelines and strategies to manage and prevent instances of workplace bullying.
- Domestic Violence & DV Workplace Safety Plan: Outlines steps to support employees affected by domestic violence, promoting safety within the workplace.
- Drugs and Alcohol Policy: Sets out procedures to address substance misuse, contributing to a healthier and safer work environment.
- Workplace Fatigue Policy: Provides guidance on identifying and managing employee fatigue, promoting overall well-being.
- Sexual Harassment Policy: Details processes to prevent and address cases of sexual harassment, fostering respect and dignity in the workplace.
- Psychosocial Risk Assessment Checklist: This comprehensive checklist, is designed to help you identify, assess, and control psychosocial hazards, such as workload, relationships, and organisational culture. The checklist also provides valuable guidance on mitigating risks, making it an indispensable component of the plan.
- Manager Guidance Material: Specially curated for managers, this material equips them with practical tips and advice on identifying and addressing psychosocial hazards within their teams, fostering a supportive and safe work environment.
- Employee Guidance Material: This essential resource educates employees about their role in managing psychosocial hazards. It offers practical tips on hazard identification, reporting, and supporting colleagues, empowering employees to contribute to a healthier workplace.
Ignite HR & Employment Law is supporting businesses to understand their obligations, upgrade their current policies, undertake training and information sessions for businesses. If you find yourself in a situation where a staff member makes allegations in relation to any of these workplace behaviours you may need to do an investigation we can assist in addressing a sexual harassment or bullying complaint.
Talk to us to understand your obligations