If a worker believes he or she has been bullied, effective 1 January 2014, they can apply to the Fair Work Commission for a “stop bullying order”. We’ve previously reported on the nature of the jurisdiction, and the uncertainty about how it will operate in practice (here and here). But voila! The FWC now has released the Anti-bullying Benchbook, the Anti-bullying guide and a fancy flowchart to place some meat on the bones.
We now have a bit of guidance on what the FWC is required to do in order to meet its obligation to “start to deal with an application within 14 days”. It seems that complaints will be subject to a screening process. The employer and alleged bully will be provided an opportunity to respond to the complaint. The FWC has power to knock out complaints at that stage without proceeding to a conference, mediation or hearing. So that’s good news.
President Justice Ross has underscored that the jurisdiction is not about compensation. The purpose of the laws is to prevent and stop bullying. Only existing employees are eligible to lodge a complaint, and the FWC can only make an order where there is a risk of the bullying continuing.
The draft FWC application form has also been released. The complainant is invited to have their say about the remedy they are seeking by ticking a box: an order by the FWC to prevent further bullying; investigations (or further investigations) conducted by the business; counselling or coaching/mentoring support; an apology; transfer to another work area or a change of roster; development or improvement of policies in the workplace to deal with bullying; or “other”, with the complainant invited to provide details.
So watch this space. The FWC has already revealed it is expecting a significant number of complaints.
And in other bullying news, you’ll recall that way back in 2011, Safe Work Australia released the Draft Code of Practice for Preventing and Responding to Workplace Bullying as part of the WHS harmonisation regime.
Well, after kicking around the Draft Code for some time with lengthy consultations, it has now been abandoned and replaced with the “Guide for Preventing and Responding to Workplace Bullying”. The difference? The Draft Code was criticised for being way too prescriptive on methods to achieve compliance with the model Work Health & Safety Act. The Guide is less formal and prescriptive. Application of an approved Code of Practice on a subject matter is admissible as evidence of whether there has been compliance with an obligation under the Act. In strict terms, a Guide doesn’t have the same force. In practical terms however, employers should still pay heed.
Still don’t have a bullying policy or complaint handling process? Time to get your house in order.