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AALARA reminds industry employers of bullying provisions of the Fair Work Act

AALARA reminds industry employers of bullying provisions of the Fair Work Act
January 20, 2014

The Australian Amusement, Leisure and Recreation Association (AALARA) has reminded industry employers that from 1st January 2014 the new bullying provisions in the Fair Work Act come into effect.

Since that date employees who consider they are being bullied at work will be able to apply for a 'stop bullying order' with the Fair Work Commission.

With the Fair Work Commission having released details about the procedures it will follow to process these order, from initial acceptance of the application through to conciliation and mediation, and making an order, AALARA members can now log onto the member area (Human Resources tab) of the AALARA website for Workplace Bullying Policy and Anti-Discrimination Policy and sample template letters, developed in association with the Australian Federation of Employers and Industries (AFEI).

The new provisions require that employers address the following:

Harassment and bullying
Has harassment become an issue in your workplace?
Has an employee claimed they've been harassed at work?
Are you unsure about what harassment is, and what an employer is legally required to do about it?
Do you need to know how to prevent workplace bullying and harassment?

The law now requires employers to have policies and procedures in place to stop harassment and bullying. So we have developed policies and procedures for our members, and provide training on how they are to be effectively used.

We also explain what to do when an employee complains to their boss about harassment, how to properly investigate complaints and deal with the matter. 

Key features:

• Answers and workable solutions
• Step-by-step procedures
• Advice and representation
• Training for employers and staff

Introduction

• Harassment, like discrimination, has become a high risk area for every business, no matter how small. 
• It can be a difficult area because you need to balance your responsibility to protect staff from harassment, with your responsibility to treat staff fairly if they are accused of harassment. 
• If you do not act on an allegation of harassment you could be exposed to a claim of vicarious liability, but if you do respond to the claim and don’t counsel or warn the accused properly you could be exposed to an unfair dismissal claim. 
• Protect yourself by making sure you understand all the rules. 

What is harassment?
Harassment is any unsought behaviour which: 

• Humiliates someone 
• Offends them 
• Intimidates them because of their sex, pregnancy, race, marital status, disability, sexual preference, transgender or age preference etc 

This type of harassment can take many forms including: 

• Verbal comments that put down people because of their sex, race, disability, marital status, sexual preference etc 
• Racist or sexist jokes, messages or materials - whether sent by fax, email or pinned on office walls 
• Repeated sexual invitations which have been refused before 
• Wolf whistling 
• Continually ignoring, isolating or segregating someone 
• Unnecessary physical or sexual contact 

The key to determining whether these actions constitute harassment is whether the recipient considers them as unwelcome. The alleged harasser's motives are irrelevant. The first thing to consider is the recipient's response and whether this should reasonably have been anticipated by the harasser. 
In some cases, the level of harassment may constitute criminal activity, e.g. sexual assault, indecent exposure or obscene telephone calls and letters. 

Can you be held responsible for your employees' actions?

Yes. In harassment cases, courts and tribunals do not consider ignorance of your employees’ actions as a defence. 

What steps can you take to prevent discrimination and harassment?

The basic steps to follow are: 

• Have a discrimination and harassment policy in the workplace 
• Make sure that managers and employees are aware of the policy, understand it and are kept informed with appropriate briefings and training 
• Have a grievance procedure in place and make sure that managers and employees are aware of the procedure, understand it and are kept informed with appropriate briefings and training 
• Encourage employees to use the grievance procedure if they feel they are the object of discrimination or harassment 
• Act promptly and in a fair and impartial manner when complaints of discrimination or harassment are made.
• What do you do when an employee complains about discrimination or harassment?
• Irrespective of whether the complaint is verbal or in writing, the first step is to call the AFEI Hotline and talk to one of our employment advisers. They will tell you how to deal with the complaint right down to the specific questions you need to ask both the complainant and the person accused of discrimination or harassment. 
• Guidelines for investigating complaints is set out in the following table. You can do this yourself with guidance from one of our advisers or we can handle the whole process for you at a very reasonable cost. 
• What are the consequences of not following your organisation's policies regarding discrimination and harassment?
• A failure to follow a promise set out in a policy can have legal consequences. Such a promise may include an undertaking that an employer will provide a non-discriminatory work environment. Certain aspect of policies can be viewed as part of an employee's contract of employment. 

Confirm the complaint in writing
When an employee lodges a complaint of discrimination or harassment against another employee, it's important that both parties are told exactly what will happen as a result of the complaint. 

It’s also a good idea to confirm this in writing before the initial interviews with both parties. 

(See attached for sample letters to the complainant and alleged offender respectively)

What happens if an employee is victimised for lodging a complaint?

It is unlawful to victimise a person who has lodged a complaint of unlawful discrimination. No specific penalty is set under state laws. Under the federal Act the penalties are severe: 

• $2,500 fine and/or three months' imprisonment for individuals 
• $10,000 fine for companies 
• Six months' imprisonment for victimisation of people with disabilities

What happens if the employee goes directly to the authorities?

• In many cases, employees do not lodge a discrimination or harassment complaint with their employer but rather go direct to one of the authorities either the federal Human Rights and Equal Opportunity Commission (HREOC) or the relevant state agency. 
• If this occurs, the employer does not usually hear of it until they receive an unwelcome telephone call or letter from HREOC or the relevant state agency advising them of the complaint. 
• For its employer members, AFEI recommends that if they receive such a call or letter, say and do nothing until having talked to the AFEI Hotline. AFEI has a qualified team will immediately advise employers on what steps to take. The normal process is set out below: 

Formal investigation stages

1.Investigating the claim. 
This usually means that the HREOC or the relevant state agency will contact you to notify you that a complaint has been made, and attempt to find out more about the complaint. 

2. Conciliation. 
If the complaint has no substance or is not a matter in which the HREOC or ADB has jurisdiction, it will be dismissed. If the complaint does have substance, then the HREOC or the relevant state agency will try to conciliate the complaint. 

3. Hearing the complaint.
If the parties cannot resolve their differences by conciliation the matter is referred to a more formal hearing process. The hearing is not as formal as a court hearing, but it does involve a substantial amount of time, effort and money by all parties.

For further information, contact Tony Doyle Australian Federation of Employers and Industries on email: Tony.Doyle@afei.org.au or go to www.aalara.com.au/small-business-information

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