The Anti-Bullying Jurisdiction of the Fair Work Commission

In 2012 Professionals Australia added an article to its Management Insights series called Are you at risk of a bullying claim? Sound management practices are the key. Since then, the anti-bullying jurisdiction of the Fair Work Commission has been created taking effect from 1 January 2014. This paper will outline the changes to the Fair Work Act (the Act) and provide further advice on how to minimise potential adverse claims against supervisors or managers in the workplace.

What the changes to the Fair Work Act provide

What is bullying under the new law?

Bullying is defined under the new laws as an individual[1], or group, who repeatedly behave unreasonably towards a worker, or group of workers[2], where behaviour creates a risk to health and safety[3].

However, the Act is explicit in providing that bullying does not exist in the case of “reasonable management action carried out in a reasonable manner”[4].

Who is covered under the new law?

The Act provides that a ‘worker’ is given the same meaning as a worker in the Work Health and Safety Act 2011. This allows for a broad application of the new laws to include an employee, contractor, subcontractor, outworker, apprentice, trainee or student engaged for work experience or volunteer.

Such a broad application of the law seeks to protect as many workers as possible.

What powers do workers have under the new laws?

What is the role of the Commission in handling these applications?

The new law seeks to provide an avenue for a ‘worker who has been bullied at work to apply to the FWC for an order to stop the bullying’. Such a broad approach means that workers are able to make an application to FWC (Fair Work Commission) based on their subjective position. Consequently, the test for filing an application is the reasonable belief that a worker has been bullied in the workplace. The overall purpose is to provide a forum for workers to seek a stop to conduct which they feel is bullying.

It is also important to note that there is no time limit under the new law for when a claim must be filed following a case of bullying. Further, a worker is able to make an application to FWC while at the same time having one or more parallel proceedings in other jurisdictions.

How does the Commission handle an application?

The Commission must begin handling an application within fourteen days of its lodgement. This illustrates the jurisdiction’s goal of swift and efficient action.

Following the administrative prioritisation and determination of an application, a FWC Member has the discretion to deal with a complaint as he or she sees fit. This can include the following:

• initial conference between the parties involved;
• a mediation and/or conciliation;
• a jurisdictional determination where required;
• a substantive hearing where required; and/or
• an urgent hearing for interim measures.

What orders can the Commission make?

The Commission aims to take a preventative approach to bullying rather than being reactionary. As such there is no capacity for compensatory, remedial or punitive orders. The Act stipulates that where FWC is satisfied that:

1. the worker has been bullied at work by an individual or a group of individuals; and
2. there is a risk that the worker will continue to be bullied at work by the individual or group;
3. then the Commission may make any order it considers appropriate (other than an order requiring payment of a pecuniary amount) to prevent the worker from being bullied at work by the individual or group.
4. In issuing an order, the Commission must consider:
5. any final or interim outcomes arising out of an investigation into the matter that is being, or has been, undertaken by another person or body – those outcomes; and
6. if the FWC is aware of any procedure available to the worker to resolve grievances or dispute s – that procedure; and
7. if the FWC is aware of any final or interim outcomes arising out of any procedure available to the worker to resolve grievances or disputes – those outcomes; and
8. any matters that the FWC considers relevant.

As stated, the types of orders available for the Commission are geared to preventing any reccurrence of bullying in the workplace. Specifically, the Explanatory Memorandum cites the following as potential outcomes:

• the individual or group of individuals to stop the specified behaviour;
• regular monitoring of behaviours by an employer;
• compliance with an employer’s workplace bullying policy;
• the provision of information and additional support and training to workers; and/or
• review of the employer’s workplace bullying policy.

What can managers do to minimise potential claims?

The practical questions which arise from the above is what can managers or supervisors do to limit the potential for claims against the company? The first answer is that there is nothing anyone can do to limit or reduce the possibility of someone filling a claim. However, there are steps which can and should be taken to prevent these claims being adverse against the manager and the workplace. Much of what is detailed below echoes the in Are you at risk of a bullying claim? – Sound management practices the key on the need for effective communication. This is a point which cannot overstated. Clear communication is a touchstone of success in many facets of the business and the employment relationship.

Have in place and be aware of internal grievance procedures

It is important to have in place clear grievance procedures which can effectively deal with complaints or disputes. This is the first thing the FWC will look for in any complaint referred under the bullying provisions. These procedures may encompass the following structure:

INFORMAL PROCESS

1. An informal complaint is made by an employee to the appropriate supervisor or manager.
2. Every effort should be made in an attempt to resolve the grievance directly with the relevant employee before the issue escalates.
3. Human Resources (or where there is no Human Resources department the appropriate Senior Manager) should be engaged to attempt to try to resolve the grievance.

FORMAL PROCESS

1. Where the informal process does not resolve the grievance a formal procedure should be followed.
2. The Human Resources department should be advised in writing of the complainant and the particulars of the grievance. This should then be disseminated to all of the individuals involved.
3. A formal meeting should be held within a set time frame (for example five days from the notification of the complaint). Discussion points from this meeting should be recorded and provided to everyone present. Further, if you feel it is beneficial to resolving the issue, a follow up meeting can be scheduled.
4. If the matter remains unresolved, then a report of the complaint and grievance process thus far should be provided to the CEO by the Human Resources Manager. Further, the complainant and the respondent should both be provided with a copy of the report, and the opportunity to submit any evidence or documentation.
5. The CEO will then provide a determination of the complaint and outcomes to follow. This may include the option of engaging an agreed independent mediator (we advise that a time frame be placed on providing this determination such as five working days).
6. In the event that the grievance is not resolved by following the above procedures, the complainant may refer the matter to Fair Work Commission, or another relevant body such as an agreed independent mediator. Here the parties should agree to be bound by any determination made by a person or body at this step.
7. At each stage of the informal and formal process, the employee must be given the right to the assistance of a representative and/or support person of their choice.
8. It is imperative that managers seek clarification from the Human Resources department, or in their absence, the appropriate Senior Manager.

Maintain transparency

It is critical that at each step of investigating a complaint and following grievance procedures (such as those detailed above) transparency in the process is maintained.

This can be achieved by:

1. Making available to all employees a copy of the grievance procedures for your workplace;
2. Having another manager, independent of the complaint, present at formal meetings/discussions;
3. Ensuring parties are aware of the purpose of any meeting, and adequate notice is given for the attendance of a representative or support person;
4. Providing the concerned parties with a written copy of any meeting plan;
5. Allowing adequate time for any responses you seek from the parties;
6. Providing particulars of any allegations against a respondent in writing; and
7. Exhibiting a lineal process of determination for any outcomes made, based on the procedures followed and information collected.

The above list is a guide only and is not intended to be exhaustive. it is intended to highlight how important transparency is and must be exercised in way that is suited to the particular circumstances and workplace.

Consider an independent investigator following complaints

Independent workplace investigators can be engaged for the specific purpose of investigating a complaint. This is often beneficial as it eliminates any potential allegation of failure to follow due process, or bias.

Although not always necessary, engaging an independent investigator may be summed up as being “better safe than sorry”. The reality is that the anti-bullying jurisdiction of the Fair Work Commission and the legislative changes are in many ways unchartered waters. Until a solid base of case law illustrating the application of the new law exists, Professionals Australia would advise managers and employers generally to consider a safe is best approach.

Article to be read in conjunction with this article

Are you at risk of a bullying claim? – Sound management practices the key

About the Author

Joseph Kelly has had extensive experience in commercial litigation and workplace law, having advised employers and employees on all issues relating to industrial relations and employment law. Joseph has advised industry bodies, unions, employers and government and continues to run training and information seminars for legal practitioners.  Joseph is currently the Principal of Kelly Workplace Lawyers. [web: http://www.kwlawyers.com.au/]

[1] section 789FD(1)(a)(i).

[2] section 789FD(1)(a)(ii).

[3] section 789FD(1)(b).

[4] section 789FD(2).