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Proposed bullying code to be redrafted as guidance

AREEA senior workplace policy adviser Lisa Matthews summarises a recent win for AREEA members, in which Safe Work Australia will redraft a workplace bullying document from a national code of practice into “guidance” material instead.

AREEA has been vocal in its lobbying to date about members’ concerns over the massively increased regulation that employers will face in the area of workplace bullying from 1 January 2014 next year.

Along with the Fair Work Act’s new jurisdiction to hear claims from workers who allege they have been bullied at work, Safe Work Australia earlier this year released a draft code of practice that proposed to further increase regulation around workplace bullying in the work health and safety jurisdictions.

AREEA’s July 2013 submission to Safe Work Australia on the draft bullying code pointed out that employers would find it difficult if not impossible to comply with the code in its current form. AREEA also highlighted the lack of clarity around how the draft bullying code would interact with the Fair Work Commission’s new jurisdiction from early next year.

AREEA’s submission emphasised that greater awareness and education were needed rather than increased prescription in the form of a national code of practice:

“The draft code of practice should be reframed as guidance material and under no circumstances should it become an instrument that can be used against employers in legal proceedings.”

Codes of practice have a special status given that an approved code is automatically admissible as evidence in court proceedings under the Work Health & Safety Act and Regulations in each participating state (currently all states and territories barring Victoria and Western Australia). Courts may have regard to a code as evidence of what is known about a hazard, risk or control and may rely on the code in determining what is reasonably practicable in the circumstances.

AREEA successfully argued that regulation around “psychosocial” issues such as workplace bullying needed a greater degree of flexibility around the information provided. This was critically important in an area as complex to manage as workplace bullying.

Safe Work Australia is in the process of redrafting the code as guidance material and will release it in due course.

Click here for a summary of the bullying changes and other changes under the Fair Work Amendment Act 2013 that will take effect on 1 January 2014.

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