Commonwealth Numbered Acts Commonwealth Numbered Acts
1 After subsection 9(5A)
Insert:
(5B) Part 6-4B allows a worker who has been bullied at work to apply to the FWC for an order to stop the bullying.
2 Section 12
Insert:
"bullied at work" : see subsection 789FD(1).
"constitutionally-covered business" : see subsection 789FD(3).
"worker" :
(a) in Part 6-4B--see subsection 789FC(2); and
(b) otherwise--has its ordinary meaning.
3 Subsection 539(2) (at the end of the table)
Add:
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Part 6-4B--Workers bullied at work |
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38 |
789FG |
(a) a person affected by the contravention; (b) an industrial association; (c) an inspector |
(a) the Federal Court; (b) the Federal Magistrates Court; (c) an eligible State or Territory court |
60 penalty units |
4 At the end of subsection 576(1)
Add:
; (q) workers bullied at work (Part 6-4B).
5 At the end of subsection 675(2)
Add:
; (j) an order under Part 6-4B (which deals with workers bullied at work).
6 After Part 6-4A
Insert:
Part 6-4B -- Workers bullied at work
This Part allows a worker who has been bullied at work to apply to the FWC for an order to stop the bullying.
789FB Meanings of employee and employer
In this Part, employee and employer have their ordinary meanings.
Division 2 -- Stopping workers being bullied at work
789FC Application for an FWC order to stop bullying
(1) A worker who reasonably believes that he or she has been bullied at work may apply to the FWC for an order under section 789FF.
(2) For the purposes of this Part, worker has the same meaning as in the Work Health and Safety Act 2011 , but does not include a member of the Defence Force.
Note: Broadly, for the purposes of the Work Health and Safety Act 2011 , a worker is an individual who performs work in any capacity, including as an employee, a contractor, a subcontractor, an outworker, an apprentice, a trainee, a student gaining work experience or a volunteer.
(3) The application must be accompanied by any fee prescribed by the regulations.
(4) The regulations may prescribe:
(a) a fee for making an application to the FWC under this section; and
(b) a method for indexing the fee; and
(c) the circumstances in which all or part of the fee may be waived or refunded.
789FD When is a worker bullied at work ?
(1) A worker is bullied at work if:
(a) while the worker is at work in a constitutionally-covered business:
(i) an individual; or
(ii) a group of individuals;
repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member; and
(b) that behaviour creates a risk to health and safety.
(2) To avoid doubt, subsection (1) does not apply to reasonable management action carried out in a reasonable manner.
(3) If a person conducts a business or undertaking (within the meaning of the Work Health and Safety Act 2011 ) and either:
(a) the person is:
(i) a constitutional corporation; or
(ii) the Commonwealth; or
(iii) a Commonwealth authority; or
(iv) a body corporate incorporated in a Territory; or
(b) the business or undertaking is conducted principally in a Territory or Commonwealth place;
then the business or undertaking is a constitutionally-covered business .
789FE FWC to deal with applications promptly
(1) The FWC must start to deal with an application under section 789FC within 14 days after the application is made.
Note: For example, the FWC may start to inform itself of the matter under section 590, it may decide to conduct a conference under section 592, or it may decide to hold a hearing under section 593.
(2) However, the FWC may dismiss an application under section 789FC if the FWC considers that the application might involve matters that relate to:
(a) Australia's defence; or
(b) Australia's national security; or
(c) an existing or future covert operation (within the meaning of section 12E of the Work Health and Safety Act 2011 ) of the Australian Federal Police; or
(d) an existing or future international operation (within the meaning of section 12E of the Work Health and Safety Act 2011 ) of the Australian Federal Police.
Note: For another power of the FWC to dismiss applications under section 789FC, see section 587.
789FF FWC may make orders to stop bullying
(1) If:
(a) a worker has made an application under section 789FC; and
(b) the FWC is satisfied that:
(i) the worker has been bullied at work by an individual or a group of individuals; and
(ii) there is a risk that the worker will continue to be bullied at work by the individual or group;
then the FWC may make any order it considers appropriate (other than an order requiring payment of a pecuniary amount) to prevent the worker from being bullied at work by the individual or group.
(2) In considering the terms of an order, the FWC must take into account:
(a) if the FWC is aware of any final or interim outcomes arising out of an investigation into the matter that is being, or has been, undertaken by another person or body--those outcomes; and
(b) if the FWC is aware of any procedure available to the worker to resolve grievances or disputes--that procedure; and
(c) if the FWC is aware of any final or interim outcomes arising out of any procedure available to the worker to resolve grievances or disputes--those outcomes; and
(d) any matters that the FWC considers relevant.
789FG Contravening an order to stop bullying
A person to whom an order under section 789FF applies must not contravene a term of the order.
Note: This section is a civil remedy provision (see Part 4-1).
789FH Actions under work health and safety laws permitted
Section 115 of the Work Health and Safety Act 2011 and corresponding provisions of corresponding WHS laws (within the meaning of that Act) do not apply in relation to an application under section 789FC.
Note: Ordinarily, if a worker makes an application under section 789FC for an FWC order to stop the worker from being bullied at work, then section 115 of the Work Health and Safety Act 2011 and corresponding provisions of corresponding WHS laws would prohibit a proceeding from being commenced, or an application from being made or continued, under those laws in relation to the bullying. This section removes that prohibition .
789FI This Part is not to prejudice Australia's defence, national security etc.
Nothing in this Part requires or permits a person to take, or to refrain from taking, any action if the taking of the action, or the refraining from taking the action, would be, or could reasonably be expected to be, prejudicial to:
(a) Australia's defence; or
(b) Australia's national security; or
(c) an existing or future covert operation (within the meaning of section 12E of the Work Health and Safety Act 2011 ) of the Australian Federal Police; or
(d) an existing or future international operation (within the meaning of section 12E of the Work Health and Safety Act 2011 ) of the Australian Federal Police.
789FJ Declarations by the Chief of the Defence Force
(1) Without limiting section 789FI, the Chief of the Defence Force may, by legislative instrument, declare that all or specified provisions of this Part do not apply in relation to a specified activity.
(2) A declaration under subsection (1) may only be made with the approval of the Minister and, if made with that approval, has effect according to its terms.
789FK Declarations by the Director-General of Security
(1) Without limiting section 789FI, the Director-General of Security may, by legislative instrument, declare that all or specified provisions of this Part do not apply in relation to a person carrying out work for the Director-General.
(2) A declaration under subsection (1) may only be made with the approval of the Minister and, if made with that approval, has effect according to its terms.
789FL Declarations by the Director-General of ASIS
(1) Without limiting section 789FI, the Director-General of the Australian Secret Intelligence Service may, by legislative instrument, declare that all or specified provisions of this Part do not apply in relation to a person carrying out work for the Director-General.
(2) A declaration under subsection (1) may only be made with the approval of the Minister and, if made with that approval, has effect according to its terms.