Workplace bullying and harassment remain significant legal and operational risks for Australian employers. With evolving federal and state legislation, as well as international standards, it is essential for organisations to implement robust policies and procedures to ensure compliance and promote a safe workplace. This article outlines the legislative framework, compliance requirements, and practical steps for developing effective anti-bullying and harassment policies in Australia.
Key Takeaways
Understanding the essentials of anti-bullying and harassment compliance in Australia:
The Fair Work Act 2009 (Cth) provides a federal anti-bullying jurisdiction for constitutionally-covered businesses.
The Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 introduced ‘stop sexual harassment orders’ and expanded protections.
Work Health and Safety (WHS) laws require employers to manage psychosocial risks, including bullying and harassment.
Employers must implement clear policies, provide regular training, and establish confidential complaint processes.
State and territory laws complement federal protections, creating a multi-jurisdictional compliance landscape.
Federal Legislative Framework
Fair Work Act 2009 Anti-bullying Jurisdiction
Australia’s primary anti-bullying framework operates through Part 6-4B of the Fair Work Act 2009 (Cth). Workers who reasonably believe they have been bullied at work may apply to the Fair Work Commission for an order to prevent further bullying. The jurisdiction applies to:
Constitutional corporations
The Commonwealth and its authorities
Bodies corporate incorporated or operating in territories
The Commission may make any order it considers appropriate (except for monetary compensation) to prevent further bullying.
Sexual Harassment Amendments
The Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 extended the Fair Work Commission’s jurisdiction to include sexual harassment, in line with the Respect@Work Report. The amendments:
Introduced ‘stop sexual harassment orders’
Adopted the definition of sexual harassment from section 28A of the Sex Discrimination Act 1984
International Standards
Australia ratified International Labour Organization Convention 190 on 9 June 2024, reinforcing its commitment to eliminating workplace violence and harassment in accordance with international standards.
Work Health and Safety Legislation
Primary Duty of Care
Under WHS Acts across all Australian jurisdictions, persons conducting a business or undertaking (PCBUs) must ensure, so far as reasonably practicable, the health and safety of workers. This includes:
Monitoring workplace conditions to prevent physical and psychological injury or illness
Addressing bullying, harassment, violence, aggression, and poor workplace relationships
.
Psychosocial Risk Management
Recent amendments require PCBUs to identify and control psychosocial hazards, including:
Bullying and harassment
Sexual harassment
Conflict and poor relationships
State-based Anti-Discrimination and Workplace Safety Laws
State and territory WHS Acts prohibit discriminatory conduct and define prohibited reasons for such conduct. These operate alongside federal frameworks to provide comprehensive protection.
Training and Education Requirements
Employers are encouraged to provide professional training, such as those offered by the Anti-Discrimination Board of NSW, including:
Preventing Harassment & Bullying in the Workplace
Grievance Handling
Developing Contact Officer Skills
Clear policies and regular training are essential for compliance.
Legal Profession-Specific Initiatives
Following high-profile allegations in South Australia, the legal profession has adopted:
Enhanced vetting for judicial appointments and senior counsel
Compulsory continuing professional development on harassment
Confidential complaint processes with support services
Annual training for all lawyers with acknowledgment of reporting obligations
Policy Development Framework
Australian anti-bullying and harassment policies are multi-layered, operating through:
Federal workplace relations law (Fair Work Act 2009)
State/territory occupational health and safety legislation
State/federal anti-discrimination legislation
Professional conduct rules and industry codes
Enforcement Mechanisms
The Fair Work Ombudsman can investigate workplace bullying complaints, commence proceedings in court, or make applications to the Fair Work Commission where adverse action is linked to harassment or discrimination.
Current Challenges and Developments
Coverage Limitations
The Fair Work Act’s jurisdiction is limited to constitutionally-covered businesses. Employees outside this scope cannot access the Fair Work Commission for bullying claims.
Definitional Requirements
There is debate over whether bullying must be frequent or repeated over time. Some authorities require weekly occurrences over six months; others accept less frequent but intense behaviour. However, repetition is generally required.
Power Imbalance Factor
A key feature of bullying is a power imbalance between the target and perpetrator, which informs policy design and intervention strategies.
If your organisation requires assistance with developing or reviewing anti-bullying and harassment policies in Australia, or needs advice on compliance with workplace laws, contact our experienced employment law team today.
Frequently Asked Questions
What is workplace bullying under Australian law?
Workplace bullying is repeated unreasonable behaviour towards a worker that creates a risk to health and safety, including harassment, social exclusion, or negatively affecting someone’s work.
Who can apply for anti-bullying orders under the Fair Work Act?
Workers employed by constitutionally-covered businesses may apply to the Fair Work Commission if they reasonably believe they have been bullied at work.
Are employers legally required to prevent workplace bullying?
Yes. Employers have duties under both the Fair Work Act and WHS laws to implement policies, training, and risk management measures to prevent workplace bullying.
How does sexual harassment fit into anti-bullying laws?
Sexual harassment is specifically addressed under recent amendments, allowing workers to seek ‘stop sexual harassment orders’ in addition to existing protections.
What should an effective anti-bullying policy include?
A compliant policy should cover definitions, reporting procedures, investigation processes, consequences for breaches, training requirements, and support resources.
