In this In Brief, we consider recent developments in the anti-bullying jurisdiction of the Fair Work Commission (FWC) under Part 6-4B of the Fair Work Act 2009 (Cth) (FW Act).
The FWC’s Annual Report 2013-14 indicates that while the numbers of bullying claims are still much lower than expected overall, they have been gradually increasing month-on-month.
In this In Brief, we provide a snapshot of the FWC data, along with a summary of recent decisions on:
- jurisdictional objections to applications for anti-bullying orders;
- what constitutes “bullying” as distinct from reasonable management action;
- orders made by the FWC;
- suppression of the identity of parties, and legal representation, in FWC bullying cases.
FWC WORKPLACE BULLYING CASE DATA
In the first six months of operation of Part 6-4B (1 January-30 June 2014), the FWC fielded over 100,000 website enquiries and 3,500 telephone enquiries about the new anti-bullying jurisdiction.
343 applications for anti-bullying orders were lodged during this period – these applications were dealt with as follows:
- more than 270 conferences/hearings were held in bullying cases;
- 197 bullying matters were finalised – the outcomes were:
- 59 withdrawn early in the case management process
- 34 withdrawn prior to any formal FWC proceeding
- 63 resolved during proceedings
- 20 withdrawn after conference/hearing
- 21 resulted in a decision:
- 3 dismissed (jurisdictional objection)
- 4 dismissed (applicant not bullied/would not be subject to future bullying)
- 13 dismissed (applicant did not pursue/properly pursue claim)
- 1 led to the making of an anti-bullying order (by consent between the parties).
In separate decisions, the FWC has again confirmed that:
- Applications under Part 6-4B cannot be made by employees of state government departments or authorities, such as a public school teacher employed by the NSW Department of Education. These types of workers are not employed in a “constitutionally-covered business” as required by section 789FD(1) of the FW Act: A.B.  FWC 6723 (30 September 2014).
- An application for an anti-bullying order cannot be pursued by an employee who is no longer working with the relevant employer at the time the matter comes before the FWC: Dr Pushpa Ravi v Baker IDI Heart and Diabetes Institute Holdings Limited; Dr Anne Reutens  FWC 7507 (28 October 2014). See also Paul Hill v L E Stewart Investments Pty Ltd t/a Southern Highland Taxis and Coaches; and Others  FWC 4666 (25 July 2014).
WHAT CONSTITUTES “BULLYING”?
Under section 789FD(1) of the FW Act, a worker is “bullied at work” when:
- another individual or group of individuals “repeatedly behaves unreasonably towards the worker”; and
- “that behaviour creates a risk to health and safety.”
However, “reasonable management action carried out in a reasonable manner” is not considered bullying (section 789FD(2)).
In Applicant v Respondent  FWC 6285 (31 October 2014), the FWC maintained the broad approach to the concept of “reasonable management action” adopted in earlier cases. In this case, the applicant alleged there had been repeated bullying by his manager in a federal government department. The allegations included that the manager had told the applicant to “go back where I came from”; and had engaged in intimidation, put-downs and patronising of the applicant, as well as fabrication of non-existent performance issues. As a result, the applicant’s health had been adversely affected.
However, the FWC accepted the department’s position that it had engaged in legitimate performance management of the applicant. The applicant’s manager had been addressing a number of concerns regarding the applicant’s performance, and these were “not motivated by an intention to bully him”. The applicant’s “perception of a malevolent intention” on the part of the manager, while honestly held, was without justification according to the FWC. As the department had acted on the basis of “an ordinary exercise of management prerogative”, there was no bullying and the application was dismissed.
The FWC may issue an order to stop bullying under section 789FF(1) of the FW Act, where it is satisfied that a worker has been bullied at work and there is a risk that the bullying will continue. Two recent examples illustrate the breadth of the orders that the FWC can make under this provision.
Applicant v Respondent (PR555329)
After a conference between the parties, the FWC made an order (by consent) which restricted the contact between the applicant and the respondent. The order was very detailed, requiring the employee who was the subject of the application to:
- not exercise on the balcony in front of, or in the vicinity of, the applicant’s desk between 8.15am and 4.15pm;
- not speak to the applicant in circumstances where there are no other individuals within listening range;
- make no comment about the applicant’s attire or appearance;
- not send any emails to the applicant unless the subject is work-related, and one of two other named employees is also an addressee;
- not send any text messages or call the applicant unless there is an immediate work related emergency;
- not raise any issues relating to the applicant’s work capabilities or job performance without first notifying the other above-named employees.
Applicant v Company A Pty Ltd; Company B Pty Ltd; and Third Respondent
The FWC made an order (again, by consent) which restricted the conduct of two brothers working in companies related to their family trust. Under the order, the Applicant and Third Respondent must be civil to one another and avoid making abusive or offensive statements; and may only contact each other via email between 9.00 am and 5.00 pm, with a maximum of three emails per day (apart from emergencies). All emails are required to be about the business of the trustee companies. The order operates for a three-month trial period.
FWC RESISTS SUPPRESSION OF IDENTITY OF PARTIES
Under section 593(3)(c) of the FW Act, the Commission may issue an order to prohibit or restrict the publication of the names and addresses of persons appearing at a hearing in a matter, where satisfied that it is desirable to do so because of the confidential nature of any evidence or for any other reason.
Two decisions over the last few months demonstrate that the FWC will only allow de-identification of parties pursuant to section 593(3)(c) in limited circumstances.
Justin Corfield  FWC 4887 (21 July 2014)
The FWC denied the Respondents’ request that the parties in the matter be de-identified. The Respondents made the application on the basis that publication of the names of the parties:
- would not be conducive to the good governance of the Respondent employer; and
- may damage the integrity of the Respondent employer’s performance management system as it will become subject to scrutiny.
The Commission determined that:
- the presumption of section 593 of the FW Act is that hearings should be conducted in public in accordance with the “open justice” principle;
- “mere embarrassment, distress or damage by publicity” is not a sufficient basis to grant an application pursuant to section 593(3)(c);
- there would be “no harm, apart perhaps from some embarrassment to the Respondent employer, which will come from the identification of the parties”; and
- the scrutiny of the Respondent employer’s performance management system would not necessarily adversely affect the integrity of that system, as scrutiny of a “robust system” would only promote confidence in it.
The FWC also indicated that despite its rejection of the Respondents’ application, the identity of the Respondents would not be disclosed until the hearing in accordance with the tribunal’s practice of only naming the applicant employee in its public listings. Further, the decision “should not be seen as giving the Applicant permission to publicly identify the Respondents to his application”.
Bowker and Others v DP World Melbourne Limited T/A DP World; Maritime Union of Australia, The-Victorian Branch and Others  FWC 7381 (21 October 2014)
Following the decision in Justin Corfield  FWC 4887, the FWC refused an application by one of the Respondents (the MUA) to de-identify the parties. The Commission determined that the embarrassment and risk of prejudice claimed by the MUA did not outweigh the desirability for open justice in dealing with the applicants’ bullying claims.
Consistently, again, with its approach in previous decisions, the FWC has granted legal representation in an application for orders under Part 6-4B. Representation in bullying cases is subject to the usual rules set out in section 596 of the FW Act.
In Applicant  FWC 7378 (17 October 2014), the Respondents (being the employer and six respondent employees) sought permission for legal representation on the basis that this would assist in having the matter dealt with more efficiently given the complex nature of the proceedings. Eight witnesses were to be called, and a large volume of material submitted, by the parties.
The Commission considered that:
- the Applicant’s refusal to participate in conciliation prevented a better understanding or narrowing of the issues in dispute between the parties, which added to the complexity of the matter;
- the number of witnesses and respondent employees created a level of complexity such that “if permission [for legal representation] is not granted multiple cross examinations of witnesses may occur”;
- legal representation would allow the matter to be dealt with more efficiently.
This was also the basis for the granting of a request for legal representation in H v Centre and Others  FWC 6128 (4 September 2014), where the FWC rejected the applicant’s submission that the anti-bullying jurisdiction is based on parties being self-represented.
One of the cases discussed above – Bowker and Others v DP World Melbourne Limited T/A DP World; Maritime Union of Australia, The-Victorian Branch and Others – is shaping up as a test case on other aspects of the provisions in Part 6-4B.
Deputy President Gostencnik has referred the case to a Full Bench (comprising himself, Justice Ross and Commissioner Hampton), which will consider:
- whether Facebook comments allegedly posted by MUA officials can constitute conduct “while [a] worker is at work” within the definition of bullying in section 789FD(1);
- the extent to which bullying claims may be pursued against a union/union officials present at the workplace. On this point, there has still been no definite proposal by the Coalition Government to implement its 2013 election commitment to make union officials explicitly subject to the anti-bullying jurisdiction.
The parameters of the FW Act bullying provisions continue to evolve through decisions of the FWC.
The total number of bullying claims in the first six months was around 20% of the number anticipated by the FWC before Part 6-4B commenced operation.
Despite this, employers need to have effective systems in place to prevent bullying issues from arising in the workplace and to deal with bullying allegations/claims when they surface.