The Fair Work Commission’s anti-bullying regime is a missed opportunity ripe for improvement, writes Karl Rozenbergs.

The anti-bullying regime regulated by the Fair Work Commission (Commission) was introduced by the Labor government in 2013 with great expectations.

Unfortunately, now in its second year of operation, it is apparent that the regime is not achieving its stated aims: aims which include providing a quick, cost effective mechanism for individuals to apply for an order to stop bullying in the workplace.

The Gillard Labor Government introduced the regime into Parliament in response to the report 'Workplace Bullying: We just want it to stop'. Bill Shorten, then Minister for Employment and Workplace Relations, claimed that the regime was necessary to ‘help people resume normal working relationships’.

While the regime is ostensibly simple, in practice it can be complicated and unpredictable, take months and result in significant legal cost to resolve applications. It can also destroy relationships between colleagues - the very relationships it was designed to preserve. 

In the regime’s first year of operation (2014), the Commission’s quarterly reports show it received 701 anti-bullying applications. While the Commission made a decision in 56 of the 701 applications, it made only two orders to stop bullying. In 98 percent of its decisions, the Commission dismissed the relevant application. The vast majority were dismissed because the applications were vexatious or frivolous, had no reasonable prospects of success or were not made in accordance with the regime. 

As at the start of 2015, 24 percent of bullying applications remained unresolved.

Those figures suggest that too many unsubstantiated applications are being made, and that many applications remain unresolved. 

Further, the submissions to the Productivity Commission’s review of the Workplace Relations Framework show that some hold significant concerns in relation to the regime. 

For example, the submission of the Catholic Commission for Employment Relations labels the regime ‘lengthy, resource intensive, and adversarial’. It concludes that the regime does not serve its aim of ‘maintaining the employment relationship’ and that, if anything, it does the opposite.

The Australian Mines and Metals Association goes further and submits that bullying allegations can be used as 'industrial weapons' against other employees or employers. The AMMA submission expressed the view that the regime was rushed and should be repealed.

My experience as an employment law practitioner, and the experience of others as shown in many of the Productivity Commissions submissions, is that the regime is neither quick nor cost effective, and does not help people resume normal working relationships. On that basis, it is clear that for many, the regime is not meeting its stated aims.

So why is the regime not meeting its aims?

The regime is inherently adversarial. By requiring the first documents in all applications to be an Application and a Response, the regime positions the applicant against not only their employer, but also against their colleagues who they allege to be bullies. 

Only after the parties have adopted their respective positions will the Commission try to resolve the matter. By that point, an accusatory and defensive environment invariably exists between the parties, and the employees involved are generally anxious and suffering from stress. It is not uncommon for the employees involved to take sick leave or lodge workers’ compensation claims, further increasing the burden on employees and the employer. 

That, of course, also reduces the likelihood that the employees involved can resume normal working relations.

The Commission’s traditional role may also be an issue: as experienced as it is, the Commission is not used to dealing with disputes between employees (as compared to disputes between employees and their employers), particularly where the employer’s stance on the issues is fluid. 

In that regard, the employer’s stance on the issues will often depend on the seniority of the employees involved and whether performance management is an issue. That 65 percent of applications in 2014 involved the conduct of managers indicates that employers have invariably had to assess the conduct of their managers and decide whether to either ‘back’ them or distance themselves from them.

The Commission also lacks experience resolving matters between employees where the resumption of normal working relationships is paramount. For example, in unfair dismissal applications, the applicant is no longer employed and generally the fight is about compensation.

In my experience, bullying applications are complex and involve allegations against a number of co-workers.

Assessing whether the allegations are genuine is difficult. It can be challenging to distinguish between fact and emotion, especially when those involved feel wronged.  Although employers should conduct internal investigations when such issues arise, in my view it is wholly unnecessary and unhelpful for employers to do so while also answering and justifying themselves to the Commission. 

As such, employers should be granted time to investigate bullying allegations before a claim can be made to the Commission. This would have the added benefit of allowing employers to take a fully informed position rather than entrenching their support behind the alleged bully when such support may be misplaced.

The cost, stress and expense of dealing with bullying applications is exacerbated by the fact that it is unclear under the regime when and how independent investigations are required. Further, whether legal representation should be sought for the employer, as well as independently for each employee subject to allegations, are questions that require attention and can result in significant expense.

Bullying in Australian workplaces must be addressed. However, the regime as it stands does not meet its aims.

Currently, the regime is a missed opportunity.

To improve the regime an ‘inquisitorial’ approach, rather than the current adversarial approach, is paramount. Consideration should be given to handing the administration of the regime to a body that has experience in investigative processes.

Applicants should also be required to first attempt to resolve their concerns with their employer directly. Failing that, the body that receives applications should have greater powers to act as a ‘gatekeeper’ in investigating and filtering out frivolous or vexatious applications at an early stage.