Partner, Erin McCarthy and Lawyer, Eliza Hampton take a look at the first 12 months of operation of the Fair Work Commission’s anti-bullying legislation.
The Fair Work Commission’s anti-bullying jurisdiction came into operation on 1 January 2014. The jurisdiction allows workers who reasonably believe that they have been bullied at work to apply to the Fair Work Commission for an order to stop the bullying. The Commission may make such an order if it is satisfied that bullying has occurred and there is a risk that bullying will continue.
In the first six months of operation, the Commission received more than 100,000 unique website hits regarding anti-bullying, and dealt with more than 3500 telephone enquiries. In the period from 1 January-30 September 2014, 532 applications were received by the Commission.
Despite these high numbers, only 36 applications were finalised by a decision, and of those only 1 resulted in the grant of an order to stop bullying. This could indicate a successful settlement procedure through mediation or conciliation without the need for a Commission determination, or a failure on the part of the worker to understand the limitations of the jurisdiction resulting in their withdrawal from the claim, i.e. that no monetary compensation can be awarded or that there needs to be an on-going risk of bullying.
The first twelve months has produced a number of interesting decisions. Due to the infancy of the jurisdiction, the boundaries of the Commission’s powers are still being tested, and the interpretation of what constitutes bullying in a workplace is largely dependent on the circumstances of the particular case. This has sometimes resulted in lengthy discussion in the Commission’s decisions.
Employer’s should be mindful that although there have been very few decisions handed down by the Commission in this jurisdiction, the number of applications and enquiries indicates that employees are aware of the operation of the new jurisdiction and are not afraid to involve the Commission where they believe they have been bullied. Being informed of the limitations and operation of the jurisdiction will allow employers to better respond to complaints of bullying internally and prepare a course of action if the matter proceeds to the Commission.