On 1 January 2014 the Fair Work Commission (FWC) assumed a newly created jurisdiction designed to curb bullying in the workplace. The new jurisdiction arises from amendments to the Fair Work Act 2009 (FWA) introduced by the Gillard government last year.
A risk to a person’s health and safety
In the new regime, “bullying” occurs when a person or a group of people repeatedly behaves unreasonably towards a worker or a group of workers, and the behaviour creates a risk to health and safety.
Commissioner Anna Cribb, a member of the Tribunal, spoke at the National Workers’ Compensation Summit on 27 February.
Commissioner Cribb reported that the Tribunal received 44 applications in January and a further 22 applications in February. This number is far lower than previously expected. In fact, late last year, FWC general manager Bernadette O’Neill predicted a workload of 3500 applications annually- an average of 67 per week. Although this number was not reached in the first two months of the new jurisdiction’s operation, Commissioner Cribb considered that it might have been a period of “calm before the storm.” She reported that the Commission’s “bullying help line” had taken over 200 calls a week and that the Commission was preparing for growing numbers of applications.
Of the applications made, a large group arose from bullying allegations against supervisors. Many of these claims were susceptible to the exemption for “reasonable management action” provided by the FWA. A second group of applications arose from bullying allegations against a group of fellow employees. Some claims involved counter-allegations, and at least two applications involved supervisors making bullying allegations against subordinates. One claim involved a bullying allegation by a worker in one company against members of another company.
The process of interpretation of the new laws is gaining momentum. The Commission has recently decided that conduct that took place prior to 1 January can give rise to an application in the new jurisdiction http://www.fwc.gov.au/documents/summaries/2014fwcfb1440_summary.htm . It is likely that the Commission will soon have to consider the meaning of “reasonable management action carried out in a reasonable manner” under s789FD(2), given the number of applications to which that exemption may apply.
Commission President Justice Iain Ross has previously emphasised that the jurisdiction is not a compensatory one. The primary purpose of the jurisdiction is to prevent workers from being bullied at work, and to restore working relationships. To this end he has emphasised that the Tribunal would not promote or recommend monetary settlement of claims. His Honour, like Commissioner Cribb, has predicted that there will be a growing number of applications, and further expects that a large number of applicants will be unrepresented.
Like most new jurisdictions, it will take time to work out whether and how the Commission may be able to assist employees and employers resolve what are common, but very difficult elements of personal interaction. However, given the prevalence of bullying as an issue in workplaces, every new or different step to provide assistance is to be welcomed.
Turner Freeman is in the process of developing written material that may assist parties in proceedings in the anti-bullying jurisdiction. The Fair Work Commission has also published useful guides that may be of assistance.
See https://www.fwc.gov.au/documents/factsheets/Guide_antibullying.pdf