Employers are anxious about the potential impact of the new anti-bullying jurisdiction, which will commence on 1 January 2014. Following the release of the Summary of the Case Management Model (Summary) by the Fair Work Commission (Commission), there is now some insight into what employers can expect.
Though there is still some confusion about the likely impact, it is clear there will be a significant period of trial and error, with possible adaptation by the Commission of its procedures.
The offender and the employer
Thankfully, employers will be given notice of the complainant's application before the Commission begins to deal with the complaint. This will be the case even when the application only names the offender and not the employer.
The Commission has suggested that it will have to decide whether to serve the application on the offender at the beginning of the process. Depending on the nature of the bullying, the Commission may choose to wait until after it has commenced dealing with the application, before serving it on the offender.
This makes sense, particularly where there are serious issues of bullying at play.
A preliminary report by the anti-bullying team - where could this end up?
A novel step involves the Commission's anti-bullying team preparing a report for the relevant panel head. This report will outline key issues such as whether the matter involves any potential jurisdictional points, the nature of the conduct, whether it is suitable for mediation and any factor that may affect the urgency of the case.
The intention of this step is to provide a form of "triage". For example, it will allow the Commission to quickly deal with a complaint which is outside of its jurisdiction.
How this "report" will influence the decision maker remains of concern. It will be one of the first documents the Commissioner dealing with the matter receives and will have been created in a vacuum, before a response from the employer or alleged offender can be made.
Further, what will happen to this report as the case progresses? Will it form part of the documents provided by the Commission to the work health and safety regulator under its referral powers? Is it a document that the work health and safety regulator may subpoena or seek access to under Freedom of Information legislation? The lack of assurances around the creation of this report should be extremely troubling to employers everywhere.
Instead of assigning the matter to a Commissioner, the panel head may determine that the matter should first go to mediation. This will be a confidential and voluntary process and may be conducted by an independent mediator.
It is interesting that nowhere in the amendments to the Fair Work Act, or even the explanatory memorandum to this Bill, has the step of mediation been highlighted as a part of the anti-bullying provisions. Instead, the Commission is seeking to use its other powers under the Act to conduct mediation.
It should be noted that although mediation is one of the ways that a "dispute" can be dealt with by the Commission, a complaint of bullying is not a dispute in the traditional sense.
If the matter is assigned to a member of the Commission, that Commission member also has the power to ask the parties to undertake mediation or conciliation rather than proceed straight to a hearing. This may reduce the chance that employers will find themselves in a hearing with limited time to prepare.
It is also reassuring that the Commission has stated it will not be promoting or recommending the resolution of these applications on the basis of monetary payments. This will not necessarily stop an applicant asking. However, a lack of encouragement about payment to settle will certainly minimise the risk that we will inherit a compensatory jurisdiction by stealth.
We support the use of mediation at an appropriate time. However, the prospects of success at mediation will be significantly limited if all the issues are not thoroughly understood and explored by all the parties. Instead of moving the matter along quickly, this method may cause unnecessary delay.
We would urge the Commission to carefully examine when mediation is the most appropriate method and for parties to stand their ground in circumstances where it is not appropriate. ^ top
Identity of the parties
Any mediation or conference in an anti-bullying complaint will be conducted in private. This means that only the parties and their representatives may attend (subject to leave for a lawyer to appear being granted by the Commission).
It also means that the Commission's listing of matters will not include the identity of the parties.
Unless an application is made for an anti-bullying hearing to be held in private, the hearing will be held in public. We expect that because of the potential damage to reputation arising from an allegation of bullying, many employers and offenders will make an application for the matter to be held in private.
This application should be made at the earliest opportunity to minimise any damage to reputation.
Full Bench referrals
It is interesting to note that the Summary does not highlight the stated intention of President Ross: that he will review whether a particular application should be referred to a Full Bench of the Commission. This would be used as a way to encourage the development of guiding legal principles in this new and developing area.
Although greater certainty and understanding about the jurisdiction will be created by the referral process, the concern for employers is the additional costs involved, and risk of intervention in the application by other organisations such as the ACTU, ACCI and Ai Group.
Bottom line for employers
Preparing for the introduction of the anti-bullying jurisdiction is paramount.
Employers must review their policies and procedures to ensure they are consistent with the definition of bullying. It is also essential that a robust and fair grievance handling process is available to deal with any bullying complaint.
Finally, when a complaint is made to the Commission, it is essential to understand the process so that the employer may navigate through all of the possible traps.