South Australian Numbered Acts

OCCUPATIONAL HEALTH, SAFETY AND WELFARE (SAFEWORK SA) AMENDMENT ACT 2005 (NO 41 OF 2005) - SECT 22

22—Insert of section 55A

After section 55 insert:

55A—Inappropriate behaviour towards an employee

        (1)         For the purposes of this section, bullying is behaviour—

            (a)         that is directed towards an employee or a group of employees, that is repeated and systematic, and that a reasonable person, having regard to all the circumstances, would expect to victimise, humiliate, undermine or threaten the employee or employees to whom the behaviour is directed; and

            (b)         that creates a risk to health or safety.

        (2)         However, bullying does not include—

            (a)         reasonable action taken in a reasonable manner by an employer to transfer, demote, discipline, counsel, retrench or dismiss an employee; or

            (b)         a decision by an employer, based on reasonable grounds, not to award or provide a promotion, transfer, or benefit in connection with an employee's employment; or

            (c)         reasonable administrative action taken in a reasonable manner by an employer in connection with an employee's employment; or

            (d)         reasonable action taken in a reasonable manner under an Act affecting an employee.

        (3)         If—

            (a)         an inspector receives a complaint from an employee that he or she is being bullied or abused at work; and

            (b)         the inspector, after an investigation of the matter, has reason to believe that the matter is capable of resolution under this section,

the inspector may—

            (c)         take reasonable steps to resolve the matter between the parties himself or herself; and

            (d)         if the matter remains unresolved after taking the steps required under paragraph (c), after consultation with the parties, refer the matter to the Industrial Commission for conciliation or mediation.

        (4)         A reference under subsection (3) will be made by written instrument that complies with any prescribed requirements.

        (5)         The inspector must ensure that the parties are furnished with a copy of any reference under subsection (3).

        (6)         If a matter is referred to the Industrial Commission under subsection (3), the Industrial Commission must attempt to resolve the matter by—

            (a)         conciliation; or

            (b)         mediation,

as the Industrial Commission thinks fit.

        (7)         For the purposes of this section—

            (a)         conciliation is a process where the parties meet with the conciliator with a view to the conciliator identifying the issues and resolving the matter by making recommendations if the matter is not settled by agreement; and

            (b)         mediation is a process where the mediator seeks to resolve the matter by facilitating an amicable agreement between the parties.

        (8)         The Industrial Commission must seek to commence any conciliation or mediation within 5 business days after the matter is referred to the Industrial Commission under this section.

        (9)         For the purposes of any conciliation or mediation, the Industrial Commission may (subject to subsection (10))—

            (a)         interview the parties separately or together; and

            (b)         inform itself in any other way as it thinks fit.

        (10)         The person undertaking a conciliation or mediation must—

            (a)         at the request of a party, attend at a workplace (on at least 1 occasion) for the purposes of the conciliation or mediation;

            (b)         deal with the matter with a minimum of formality.

        (11)         For the purposes of any conciliation, the conciliator may call a compulsory conference of the parties.

        (12)         The Industrial Commission may at any time bring any conciliation or mediation to an end if the Industrial Commission considers that the conciliation or mediation will not result in the resolution of the matter.

        (13)         Subject to subsection (14), nothing said or done in any conciliation or mediation under this section may subsequently be given in evidence without the consent of the parties to the conciliation or mediation.

        (14)         The terms of any agreement between the parties to any conciliation or mediation may be given in evidence in subsequent proceedings (without the restriction imposed by subsection (13)).

        (15)         The Industrial Commission must inform the Department when any conciliation or mediation under this section is concluded or brought to an end.

        (16)         The Industrial Commission and the Department may consult from time to time about the processes and arrangements that should apply under this section, and prepare and publish information and guidelines to assist persons who may become involved in conciliation or mediation under this section.

        (17)         The President of the Industrial Commission may make rules relating to—

            (a)         representation before the Industrial Commission in connection with the operation of this section; or

            (b)         the conduct of the parties to a conciliation or mediation under this section; or

            (c)         any other matter that, in the opinion of the President, is necessary or convenient for the purposes of any conciliation or mediation under this section.