The Law Handbook 2024

Chapter 11.6: Protection for your rights at work 1073 Remedies The remedies for a breach of the general protections are set out in Part 4-1 of the FW Act. The range of penalties that may be imposed range from $18780 for an individual to $93900 for a body corporate (which includes an industrial association). The orders that the FWC may make following an arbitration are: • reinstatement to employment; • payment of compensation/lost remuneration; or • for continuity of service and/or maintaining the person’s continuous service (s 369). Under the FW Act, in determining a general protections application, a court may make orders: • granting an injunction, or interim injunction, to prevent, stop or remedy the effects of a contravention; • awarding compensation for loss that a person has suffered because of the contravention; and • reinstating a person. Protection against bullying at work What is bullying at work? The FWAct defines a person as being bullied at work if, while they are at work, an individual or a group of individuals repeatedly behaves unreasonably towards the worker or a group of workers and that behaviour creates a risk to health and safety (s 789FD(1)). A person is not bullied at work if the action was reasonable management action carried out in a reasonable manner (s 789FD(2)). In the decision of Ms SB [2014] FWC 2104, the FWC considered the application of section 789FD of the FW Act and what constitutes bullying under that section. The FWC determined that: • ‘unreasonable behaviour’ should be considered to be behaviour that a reasonable person, having regard to the circumstances, may consider to be unreasonable; • a ‘risk to health and safety’ means the possibility of danger to health and safety, and is not confined to actual danger to health and safety. The ‘risk’ is the exposure to the chance of injury or loss and must also be real and not simply conceptual; and • all of the requirements of section 789FD(1) must be read together in the assessment of whether a worker has been bullied at work. Remedies for bullying at work Since 1 January 2014, the FW Act has provided a scheme for workers to obtain remedies to stop bullying at work. The scheme applies to a wider range of workers than to people in employment relationships. The scheme also applies to contractors, sub-contractors, outworkers, apprentices, trainees, students on work experience, and volunteers (s 789FC). The scheme does not cover all businesses in Victoria. A person seeking to make an application to stop bullying at work should seek advice about whether the relevant business is covered by the scheme (see s 789FD(3)). When a person makes an application to stop bullying at work, the FWC must commence dealing with the matter within 14 days (s 789FE(1)). If the FWC is satisfied that the person has been bullied at work and there is a risk the person will continue to be bullied, the FWC may make any order it considers appropriate to prevent the person being bullied at work (s 789FF). The FWC cannot make an order for payment of a pecuniary amount. In situations of bullying at work, consideration should also be given to the relevant rights referred to in ‘General protections’, above. More information about bullying at work For more information related to bullying at work, see: • Chapter 10.3: Work injuries; • Chapter 11.1: Discrimination and human rights; • Chapter 11.7: Occupational health and safety; and • the FWC’s Anti-bullying Benchbook (available at www.fwc.gov.au/benchbook/stop-bullying- benchbook) . Contacts Employment and COVID-19 The most reliable source of COVID-19 related employment information for employees is the Fair Work Ombudsman website (https://coronavirus. fairwork.gov.au) . See also ‘Fair Work Ombudsman’, below.