Bullying and the Law

The practitioners associated with Stop the Bullying and Psyche-Care are not qualified to offer legal advice. The information on this page is purely for general interest and to stimulate further investigation with qualified members of the legal profession.

The information offered here is as up-to-date as internet searches can be and may be superseded by the time you read this. Once again, please seek advice from a qualified legal professional if needed.

"On 27 June 2013, the Commonwealth Parliament passed the Fair Work Amendment Bill 2013 that, among other things, granted the Fair Work Commission (FWC) jurisdiction to deal with workplace bullying."

Source and for more information: Anti-Bullying Amendments inserted into Fair Work Act, Henry Davis York Solicitors, January 2013.

Examples of bullying

From January 1, 2014, if you are being bullied at work, then you may be able to obtain an order from the Fair Work Commission. The new workplace bullying laws will form part of the Fair Work Act 2009. There is no other specific Australian legislation that prohibits bullying in the workplace.

"Under section 789FC of the Fair Work Act, a worker who reasonably believes that he or she has been “bullied at work” can apply to the Fair Work Commission for an order. The Act picks up the definition of “worker” from the Commonwealth work health and safety legislation, where a “worker” is defined in broad terms as a person who does any “work” for a person conducting a business or undertaking, irrespective of the capacity in which that person does the work. The safety legislation specifically includes, though not exclusively, work as an employee, contractor, sub-contractor, employee of a contractor or sub-contractor, an employee of a labour hire company who is assigned work in the person’s business or undertaking (that is, the business or undertaking of the principal, not of the labour hire company); outworkers, apprentices, trainees, students undergoing work experience and volunteers. Provision is also made for the regulations to expand this class."

Source and further information: Australasian Lawyer

"A Person Conducting a Business or Undertaking (PCBU) has the primary duty of care under the Work Health and Safety Act 2011 (WHS Act) to ensure, so far as is reasonably practicable, the health and safety of workers and that other persons at the workplace are not put at risk from the work that is carried out. ‘Health’ is defined in the WHS Act as both physical and psychological health."

Source and further information: Australian Government Comcare.

What can Comcare do?

"Comcare can investigate incidents of bullying and pursue enforcement action against both the employer and/or the employee for identified breaches of their duty of care (under section 16 and 21 of the Occupation, Health and Safety Act)."

More information: Comcare Guide to Work Health and Safety Incident Notification.

Other legislation which may apply in case of bullying:

Legislation when a child is employed

"Employers of children aged under 15 years also have special responsibilities under the Children and Young Persons (Care and Protection) Act 1998 (NSW). Section 222 of that Act provides that it is an offence to allow a child aged less than fifteen years to take part in employment that puts the child’s well-being at risk."

Source and further information: Information about the law in NSW - NSW State Library

Cyberbullying can be a criminal act

"In February 2003, the NSW Crimes Amendment (School Protection) Act commenced to provide protection where a person assaults, stalks, harasses or intimidates any school staff or student while attending a school."

"Unfortunately, the section is somewhat limited in that it only provides protection for a member of staff or student when the act takes place on school premises or while entering or leaving school premises. Therefore, this provision would not cover cyberbullying activities occurring at home or on the way home."

"Section 31 of the NSW Crimes Act makes it an offence to maliciously send or deliver, or cause to be received, any document threatening to kill or inflict bodily harm. In certain circumstances, cyber bullying might fall within the ambit of this section. Moreover, cyber bullying behaviour which constitutes harassment, intimidation or stalking may in some circumstances be in breach of criminal legislation which applies in most states of Australia."

"Where cyber bullying consists of the use of non-consensual visual recordings, often on a mobile phone camera, such that there is a gross breach of privacy, the posting of such recordings on a website may also constitute a criminal offence."

"Finally, cyberbullying can, in some circumstances, constitute an assault. It must be remembered that assaults cover not only physical force, but also situations where a person fears imminent harm by means of a verbal threat. Most cyberbullying is verbal in nature and in some cases the criminal offence of assault might be triggered by the bully’s conduct."

Source and more information: Education Law Today, by Alex Kohn, 16 March 2012.

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