The new workplace anti-bullying laws came into effect on 1 January 2014 and we recently posted our 7 top tips to successfully manage bullying complaints.
Amidst the many reports about how employers need to be prepared for the new laws, the message could equally apply to union behaviour in workplaces – and not just their own.
On their face the new laws may apply to union officials or office holders who engage in bullying behaviour towards workers, such as managers, in the context of enterprise bargaining negotiations or industrial disputes, or when exercising rights of entry.
Take the following example, which will resonate with some employers. A union official takes aim at a manager or an executive. The official sends repeated inappropriate emails or posts flyers or other union correspondence containing derogatory content about management’s approach on a noticeboard or in some other prominent area. Whilst such behaviour has in some circumstances been seen as part of the “cut and thrust” of industrial relations, it can be very distressing for workers who are subject to it.
Such behaviour may, depending on the particular circumstances, give rise to a bullying situation.
The Coalition approach was that union officials would be subject to the bullying laws
The Coalition Industrial Relations policy released in May 2013 provided that the Coalition would support Labor’s then proposed changes to address workplace bullying on condition that, amongst other things, “the changes are expanded to include the conduct of union officials towards workers and employers”. The Labor Government’s proposed amendments ultimately passed through both Houses of Parliament with the support of cross bench Members of Parliament. The (then) Opposition’s proposed changes were not incorporated into the legislation.
But the new bullying laws may apply to union officials anyway.
The bullying field of protection
The provisions establish a “field of protection” around workers (including employees such as managers) where the worker carries out work “in any capacity” for a person conducting a business or undertaking. For the provisions to apply, the bullying must take place whilst the worker is “at work” in a constitutionally covered business or other specified undertakings. Parliament noted in the Explanatory Memorandum to the Bill that “orders will not necessarily be limited or apply only to the employer of the worker who is bullied, but could apply to others, such as co-workers and visitors to the workplace”.
Given the breadth of these provisions, it is conceivable that repeated unreasonable behaviour by union officials or other visitors to a workplace will be caught by the bullying laws.
The new laws will potentially apply to union officials who behave unreasonably towards workers during enterprise bargaining negotiations or industrial disputes, or when exercising rights of entry. The new laws may also have application to the conduct of union officials towards sub-contractors on building sites, or indeed conduct by a sub-contractor towards a worker.
Whether the Commission will make bullying orders in these circumstances will depend on a range of legal and practical issues including how the bullying laws will be seen to interact with other provisions of the legislation (such as good faith bargaining, general protections and right of entry permit restriction provisions) which spell out their own consequences for contraventions of these parts of the legislation. It is unlikely that the immunity applicable in relation to protected industrial action would apply to bullying conduct.
Inevitably, a case against a union official relying on the anti-bullying laws will be run. Whether or not the FWC believes it has the power to make such orders, or that it should exercise any discretion to make orders in particular circumstances, remains to be seen.
One thing is clear: in time the full ambit of the bullying provisions will be tested, with significant changes for the operation of the modern workplace in store.