Under the state Industrial Relations Act 1979, public and private sector workers covered by state employment laws can make an application to the Western Australian Industrial Relations Commission (WAIRC) for a stop bullying order.
Under these provisions, a worker is bullied at work if, while the worker is at work, a person, whether as an individual or as part of a group of individuals, repeatedly behaves unreasonably towards the worker and that behaviour creates a risk to the health or safety of the worker.
The stop bullying provisions provide the WAIRC with the power to address a worker’s bullying allegations directly and promptly. The WAIRC is not able to make a stop bullying order if there is no demonstrated risk of continued bullying, such as where an employee’s employment has ended.
Alternate pathways for bullying matters
Workers in Western Australia have a number of other options for taking action in relation to bullying matters including:
- lodging a complaint with WorkSafe if the employee is still employed in the workplace;
- lodging a workers compensation claim with WorkCover WA where the bullying has caused a workplace injury or illness;
- reporting bullying to WA Police if criminal conduct is involved;
- contacting the Equal Opportunity Commission or the Australian Human Rights Commission for information on options under discrimination and equal opportunity laws.
If you are concerned about violence or threats of violence, you should contact WA Police. They can assist in relation to assaults, threats, stalking and personal security. For non-emergency assistance, call 13 14 44.
Definition of terms relating to bullying at work used in state employment laws
Show moreA worker is bullied at work if, while the worker is at work, a person, whether as an individual or as part of a group of individuals, repeatedly behaves unreasonably towards the worker and that behaviour creates a risk to the health or safety of the worker.
Actual harm to a worker’s health or safety is not necessary. However, there must be a demonstrated risk to the health or safety of the worker and this risk must be real.
Examples of repeated unreasonable behaviour constituting bullying at work include:
- intimidation;
- coercion;
- threats;
- humiliation;
- malicious pranks;
- physical, verbal and emotional abuse;
- harassment;
- isolation;
- ostracism;
- rumour mongering; and
- discrimination.
Bullying does not include reasonable management action that is carried out in a reasonable manner.
The term ‘while the worker is at work’ means carrying out work in any capacity for a person conducting a business or undertaking. This may be at the worker’s workplace or at a place other than their workplace, including where a worker is engaging in an activity which is authorised or permitted by their employer such as attending a work Christmas party.
The use of the term ‘individual’ is broad. It means that a worker is protected from bullying at work perpetrated by their employer, a colleague, a contractor, a client or a customer of the business or undertaking in which the worker works. It can also include an individual who is a national system employer or employee.
Person conducting a business or undertaking
A worker must be carrying out work for a ‘person conducting a business or undertaking’ (PCBU) to be covered by the stop bullying provisions.
The term ‘PCBU’ includes sole traders, partnerships, public sector bodies and incorporated and unincorporated associations.
A PCBU does not have to conduct its business for profit or gain but the term does exclude volunteer associations if they do not employ anyone. There are also other exclusions to the term PCBU.
A PCBU can be a worker if they are an individual who carries out work in that business or undertaking. They are therefore also protected from bullying at work.
Who can make a stop bullying application
Show moreA ‘worker’ can make a stop bullying application to the WAIRC. A person is a worker if the person carries out work in any capacity for a person conducting a business or undertaking, including work as any of the following:
- an employee;
- a contractor or subcontractor;
- an employee of a contractor or subcontractor;
- an employee of a labour hire agency who is working in the person’s business or undertaking;
- an outworker;
- an apprentice or trainee;
- a student gaining work experience; or
- a volunteer.
A union may also refer a bullying matter relating to a member to the WAIRC.
The WAIRC will be unable to make a stop bullying order if there is no demonstrated risk of continued bullying of a worker by an individual, such as where an employee’s employment has ended after making a stop bullying application.
The WAIRC is able to deal with a stop bullying application notwithstanding that the worker has made a complaint to another body, such as WorkSafe, the Equal Opportunity Commission or WorkCover. It may also deal with an application regardless of whether or not the worker has accessed their employer’s grievance resolution processes.
Visit the Western Australian Industrial Relations Commission website for more information and to make a stop bullying application.
WAIRC response to stop bullying applications
Show moreThe WAIRC must start to deal with a stop bullying application within 14 days after the application is made. The WAIRC may deal with the application via conciliation, arbitration, or take other action as appropriate. The WAIRC may also dismiss an application.
The WAIRC may make a stop bullying order if it is satisfied that:
- a person has bullied the worker at work ; and
- there is a risk that the person will continue to do so.
The WAIRC may make any order it considers appropriate to prevent a person bullying a worker, other than an order requiring payment of compensation to the worker.
An order may be made against the person who engaged in the bullying, e.g. a manager, a co-worker, a contractor, a client or a customer.
An order may also be made that applies to a person other than the individual who has engaged in the bullying. For example, an order could be made for the workers’ employer to provide workplace bullying training to its employees, or for the applicant themselves to comply with reasonable directions of their employer.
The WAIRC will be unable to make a stop bullying order if there is no demonstrated risk of continued bullying of the worker by an individual. For example, where an employee’s employment has ended after making a stop bullying application but before the matter is dealt with by the WAIRC.
Visit the Western Australian Industrial Relations Commission website for more information and to make a stop bullying application.
Enforcement of stop bullying orders
Show moreA person to whom a stop bullying order applies must comply with the terms of the order.
If an order is not complied with, enforcement action can be taken in the Industrial Magistrates Court. The Court can impose monetary penalties and make further orders seeking compliance.
