The regulation of workplace bullying in Victoria: is legislation required?

Abstract

Workplace bullying is ubiquitous and leads to dramatic economic, psychological, physical and social harm. The Commonwealth Government’s Fair Work Amendment Act 2013 (Cth) will be critically analysed as a potential answer to the issue of workplace bullying in Victoria. Unfortunately, the Act does not appear able to adequately address this problem. Rather, Victoria may be aided by the introduction of new legislation in this state that makes workplace bullying per se illegal. Such legislation could establish a practical definition of workplace bullying and overcome the inadequacies of the current forms of workplace bullying regulation available in Victoria. The problems of the current forms of regulation will provide the basis for principles to guide legislative reform. These principles will be used to evaluate important provisions for new Victorian workplace bullying legislation, particularly in light of the recent amendments to the Fair Work Act 2009 (Cth).

Keywords:

• workplace bullying
• Victoria
• Fair Work Act 2009

Notes

1. One may note that the Fair Work Amendment Act 2013 (Cth) under s 789FC begins by allowing a ‘worker’ to apply for a FWC order to stop bullying, where that term has the broad meaning given to it under the Work Health and Safety Act 2011 (Cth). It is the restrictive definition of a ‘constitutionally covered business’ in section 789FD of the Fair Work Amendment Act 2013 (Cth) with which this article takes issue. One may also note that individuals not protected by the Fair Work Amendment Act 2013 (Cth) will continue to fall within the other provisions of the Fair Work Act 2009 (Cth), which applies to all national system employees.

2. Employers may breach a general duty of care to avoid employee exposure to unreasonable risks of injury: Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18, 25, or for failing to provide a workplace free of psychiatric injury: Mount Isa Mines Ltd v Pusey (1971) 125 CLR 383. Employers may also face vicarious liability for the relevant conduct of employees: Joel v Morison (1834) 6 C&P 501, 503. Finally, workplace bullying may satisfy the requirements of the tort of intentional harm and employers may be liable for this tort: Wilkinson v Downton (1897) 2 QB 57. For brevity’s sake, however, discussion will focus on the tort of negligence.

3. The necessity of consolidation is also reflected in reforms to the federal anti-discrimination laws through the Exposure Draft Legislation Human Rights and Anti-Discrimination Bill 2012 (Cth).

Additional information

Notes on contributors

Nadia Stojanova

Nadia Stojanova is a Consultant in the Tax Controversy team at Ernst and Young, Melbourne, Australia. The views expressed in this article are her own. She undertook this research as part of her Honours degree in law at La Trobe University.