Is workplace bullying illegal? The word ‘bullying’ is not used in the NSW Work Health and Safety Act 2011 (WHS Act), but the act of bullying can be addressed as discriminatory conduct, which brings it within the scope of the legislation. It could even amount to criminal assault depending on the facts.

The overall context is explained in the following extract from information provided by the Fair Work Ombudsman’s Unlawful Workplace Discrimination fact sheet.

“A concern for some employees in the workplace is the issue of bullying or harassment. Bullying or harassment does not necessarily constitute unlawful discrimination under the Fair Work Act 2009 unless the behaviour can be shown to be adverse action linked to one of the [proscribed] attributes [like race or age, etc ]… However, forms of bullying or harassment that do not fall within the jurisdiction of the Fair Work Ombudsman may be considered unlawful under occupational health and safety laws. People experiencing bullying or harassment are encouraged to seek advice and assistance from their local occupational health and safety body.’

Safe Work Australia provides guidance on preventing and responding to workplace bullying.

In relation to discriminatory, coercive or misleading conduct, the relevant sections are contained in Pt 6 of the NSW Work Health and Safety Act 2011. 

 

PCBU duty

Although no specific mention of the word bullying is made in the WHS Act, the person conducting a business or undertaking (PCBU) has a primary duty to eliminate or minimise, as far as reasonably practicable, the risks to health and safety in the workplace. This duty includes the implementation of strategies to prevent workplace bullying. 

Workplace participants are also required under the legislation to take reasonable care of their own health and safety, as well as that of others in the workplace.

 

Workplace discrimination policy and consultation

In relation to your policy, all workers (and others in the workplace, where possible) should be made aware of the policy, the standards that are expected of them and the consequences for breaching the policy. Training sessions about the policy should (as a minimum) take place as part of the induction of new workers and in specific training sessions for existing workers. However, your workers should be reminded of the policy on a regular basis.

Note: under the WHS Act, an employer must, as far as reasonably practicable, consult with its employees or others carrying out work, before making decisions on health and safety matters, including bullying. If there are health and safety representatives, then they must be involved in the consultation process. Consultation must be carried out when developing policies and procedures relating to bullying, including complaint procedures.

 

Fair Work amendments

Note, too, that legislation pending proposes to amend the Fair Work Act 2009 (Cth) to allow workers and others who believe they have been bullied at work to have their grievances heard by the Fair Work Commission (FWC).

This measure, announced by the Federal Government in February, supports a recommendation from last year’s National Inquiry into Workplace Bullying that arrangements be put in place for individuals to seek remedies through a legal dispute resolution process if they believe they have been subjected to workplace bullying.