New anti-bullying jurisdiction - overview
As a result of amendments to the Fair Work Act 2009 (Cth) (Act), from 1 January 2014 a worker who reasonably believes they are being bullied at work will be able to make an application to the Fair Work Commission (FWC) for an order to stop the bullying.
The new anti-bullying jurisdiction has broad coverage and will be accessible to any individual (other than a member of the Defence Force) who performs work for a business or undertaking. This includes employees, contractors, subcontractors, outworkers, apprentices, trainees, students on work experience and volunteers.
A worker will be ‘bullied at work' if while at work they are subjected to repeated unreasonable behaviour that creates a risk to health and safety. Reasonable management action carried out in a reasonable manner, that does not leave the person feeling victimised and/or humiliated, will not amount to bullying.
The FWC must start to deal with an application for a bullying order within 14 days. This may be by informing itself through inquiries, or requesting information be provided by the parties involved.
If the FWC is satisfied that a worker has been bullied at work, and there is a risk that the worker will continue to be bullied, it can make whatever order it considers appropriate, other than an order for pecuniary payment. Orders may be made against an employer or an individual, and may regulate behaviour outside of work. Examples of orders that the FWC may make include (but are not limited to) orders for the behaviour to stop, orders for compliance and/or review of the organisation’s workplace policies and procedures and orders for the provision of information, training and support. Breaches of a bullying order will attract a civil penalty, but will not constitute an offence.
While it is not necessary that a worker make use of internal grievance or dispute resolution procedures before applying for a bullying order, in considering the terms of any order it makes, the FWC must take into account any grievance and dispute resolution procedures available to the worker, as well as any final or interim outcomes of those procedures or related investigations.
The anti-bullying jurisdiction falls outside the ‘double-dipping’ provisions in the Act meaning that a worker who applies for a bullying order will be able to seek other remedies under the Act and other legislation in relation to the bullying behaviour eg claims under work health and safety legislation and general protections claims.
What does this mean for organisations?
It is anticipated that the new jurisdiction will be widely used resulting in scrutiny of internal organisational policies and procedures and, more broadly, the culture of workplaces.
While the jurisdiction will provide greater scope for managing bullying behavior, there is a risk that the provisions may be abused by workers seeking to frustrate or delay legitimate management processes, or that workers will lodge misconceived applications if they do not properly understand what constitutes bullying within the meaning of the Act. Either way, the new jurisdiction is likely to result in a rise in bullying complaints costing organisations time, money and effort.
Because the jurisdiction allows workers to initially bypass internal processes, it is expected that applications for bullying orders are likely to be more prevalent in organisations where workers have a perception that bullying is tolerated or poorly managed in the organisation, where management and/or HR are not seen as independent and objective, and where there is an ‘anti-dobbing’ culture.
Safe Work Australia Guides
The commencement of the new jurisdiction coincides with the release of two new guides on workplace bullying by Safe Work Australia; ‘Guide for Preventing and Responding to Workplace
Bullying’ and ‘Workplace Bullying - a Worker’s Guide’. The guides are going to be useful tools for employers in reviewing and auditing their existing practices and for formulating a best practice approach to preventing and responding to bullying.
While the guides are not legally enforceable, and are not admissible in proceedings as evidence of whether a duty under workplace health and safety legislation has been met (as is the case with Codes of Practice) they will form part of the evidence matrix in work health and safety prosecutions, and likely in the defence of FWC bullying claims, as to what the employer ought to have known about how to prevent and respond to bullying in the workplace. The guides will be the base from which the employer’s actions (or inaction) will be assessed.
Case management model
The FWC has released a summary of its case management model (CMM) that sets out how the FWC will deal with applications for bullying orders in practice.
The CMM includes mechanisms for ensuring the validity of applications and for identifying jurisdictional issues at an early stage, and provides for all parties to be notified of an application and given an opportunity to be heard prior to a substantive hearing being conducted.
The CMM provides that prior to a matter being assigned for mediation or determination, a report will be made by the FWC anti-bullying team and provided to the Panel Head. The Report will outline any jurisdictional issues, the nature of the alleged conduct, whether it may be suitable for mediation, the urgency of the matter and any other relevant factors.
Mediations will be confidential and voluntary and will only be proposed where it is appropriate having regard to the nature of the parties and the allegations made. The emphasis will be on repairing relationships and monetary settlements will neither be promoted nor recommended.
Unless determined otherwise, mediations and conferences will be conducted in private and the identities of parties will not be disclosed in public conference listings. However, unless orders have been made for a private hearing, hearings will be public.
To supplement the CMM, on 5 December the FWC published draft Fair Work Commission rules which incorporate anti-bullying amendments, as well as a suite of draft forms including an employer/principal response. Given the period for consultation on the documents has been limited to 7 days, and no submissions appear to have been made to date, the documents are unlikely to change.
Draft Anti-bullying benchbook
The FWC has also released a draft anti-bullying ‘benchbook’ for public consultation. The ‘benchbook’ includes summaries of relevant cases and legislation to provide examples and context relevant to the jurisdiction. Consultation on the ‘benchbook’ ends on 27 December 2013. To date, few submissions have been publicised so it is unlikely wholesale changes will be made to the ‘benchbook’.
What should organisations do?
Organisations should take the provisions seriously and take steps now to ensure they are not caught off guard by the new provisions. To do this, organisations should:
Become familiar with the provisions and guidance material. Understand your obligations and what constitutes a ‘best practice’ approach to bullying.
Tighten up workplace policies and procedures and include a clear definition and examples of bullying. Ensuring bullying and complaint handling policies reflect the new laws and demonstrate the organisation’s preparedness to proactively deal with complaints.
Ensure managers are properly trained in performance/conduct management and ‘soft skills’, and ensure they understand the new consequences for poor management and communication practices.
Deal with perception issues. Convey to workers through policy and practice that the organisation takes bullying seriously and that bullying will be dealt with quickly, effectively and objectively to minimise the incentive to seek external assistance.