The Fair Work Commission’s highly anticipated new anti-bullying jurisdiction was launched on 1 January 2014.

Workers of all descriptions (including employees, contractors, labour hire workers and even volunteers) can now apply to the Commission for an order to stop the bullying.

Much ado about nothing?

In the lead up to commencement, there was some concern that the Commission would be flooded with anti-bullying applications. However, so far, this has not been the case.

In the first three months, the Commission received 151 applications Australia-wide. This can be compared with the roughly 4000 unfair dismissal applications that the Commission receives every quarter.

It may be that potential applicants are put off by the fact that the Commission is not allowed to award them any monetary compensation in relation to the bullying. Another possibility is that it is simply taking some time for the jurisdiction to find its feet, and the number of applications may increase as workers’ awareness of the jurisdiction grows.

There is also potential for many applications to be blocked or dismissed because of the defence of reasonable management action. Conduct will not be classified as bullying if it is deemed to be reasonable management action carried out in a reasonable manner.

The recent decision of Ms SB [2014] FWC 2104, which is one of the few published decisions to date, confirms that reasonable management action has a wide meaning and that the test is whether the action was reasonable, not whether the action could have been more reasonable or more acceptable. Specifically, it was decided that while action must be lawful and not irrational, absurd or ridiculous, the action does not need to be perfect or even ideal, and a course of action may still be reasonable as a whole, even if particular steps are not reasonable.

Who is applying for orders?

So far, and as expected, the majority of applicants by far have been employees. However, there have been a few applications made by other types of workers.

Most of the applications have involved allegations of bullying against a manager or supervisor. Unsurprisingly, the defence of reasonable management action is being regularly raised by managers accused of bullying, and their employers.

The applications have come from a range of industries, although the clerical industry has had more applications than any other.

How are applications being dealt with?

The Commission must start dealing with an application within 14 days.

After receiving an application, the Commission will first serve the application on the employer/principal before serving the application on the individual(s) identified as the alleged perpetrators of the bullying. This is done to give the employer/principal an opportunity to manage the work environment before the alleged bully is notified of the application.

The employer/principal must then lodge a response to the application using the prescribed form. The individual(s) identified in the application may also lodge a response, but they are not required to do so.

A “triage” and information gathering process is then conducted. During this process, the Commission confirms the information on the application and identifies any obvious jurisdictional problems.

There will usually be a preliminary conference to determine how the matter will proceed, often followed by mediation/conciliation by a member of the Commission or a staff mediator. However, the matter can be dealt with in a number of other ways, depending on the circumstances, including progressing straight to an urgent hearing, jurisdictional determination or a merit/remedy hearing.

Outcomes

As a resolution to a matter, the Commission is empowered to make an order to stop the bullying. The Commission can make any orders it considers appropriate, except an order requiring any payment of money. The types of orders that the Commission may consider, include orders requiring:

  • specified behaviour to stop
  • employers to monitor behaviours
  • individuals to comply with a bullying policy
  • employers to provide information/ training to workers
  • a review of the existing bullying policy.

The limits of these orders have not yet been tested. For example, it is not clear whether the Commission could order an employer to restructure its personnel so as to keep specific workers apart, or indeed whether the Commission could order an employer to discipline or dismiss the bully.

Of the matters that were finalised in the first three months of the scheme, approximately 50% were resolved, 25% were withdrawn and 25% were dismissed due to incomplete applications or lack of jurisdiction.

There is also scope for published decisions of the Commission to be anonymised so that the victim, the bully and/or the employer/principal are not identified, as was the case in the Ms SB decision.