Post on 23-Jan-2015
description
The new Anti-bullying Jurisdiction
Deputy President John Kovacic
21 May 2014
Outline
• Background
• The essential features of the new jurisdiction
• How does the new jurisdiction operate?
• Experience to date
• Further information
© Commonwealth of Australia — Fair Work Commission 2
© Commonwealth of Australia — Fair Work Commission 3
Background
• House of Representatives Standing Committee on
Education and Employment report Workplace Bullying:
“We Want it to Stop”.
• Majority Report contains 23 recommendations.
• Recommendation 23 - The Committee recommends that
the Commonwealth Government implement
arrangements that would allow an individual right of
recourse for people who are targeted by workplace
bullying to seek remedies through an adjudicative
process.
Background (cont’d)
• Recommendation 1 - The Committee recommends that
the Commonwealth Government promote national
adoption of the following definition: workplace bullying is
repeated, unreasonable behaviour directed towards a
worker or group of workers, that creates a risk to health
and safety.
• Fair Work Amendment Act 2013 includes provisions
dealing with workplace bullying.
• Provisions commenced operation on 1 January 2014 –
still relatively early days.
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Essential features
What is bullying? (see s.789FD)
• A worker is bullied if:
• while at work in a constitutionally-covered
business;
• an individual or group repeatedly behaves
unreasonably towards the worker or a group of
workers; and
• the behaviour creates a risk to health and safety.
• Bullying does not include reasonable management
action carried out in a reasonable manner.
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Essential features (cont’d)
Examples of bullying
Based on cases heard in other jurisdictions, the following behaviours
could be considered as bullying:
• aggressive and intimidating conduct
• belittling and humiliating comments
• victimisation
• spreading malicious rumours
• practical jokes or initiation
• exclusion from work-related events
• unreasonable work expectations
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Essential features (cont’d)
Effects of bullying
The following consequences are indicative and will not be
relevant to all victims of workplace bullying:
• depression
• anxiety
• sleep disturbances
• nausea
• musculoskeletal complaints and muscle tension
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Essential features (cont’d)
Repeated unreasonable behaviour
• Is an objective test.
• No specific number of incidents required nor does the
same specific kind of behaviour have to be repeated.
Risk to health and safety
• Means the possibility of danger to health and safety – is
not confined to actual danger to health and safety.
• Must be a causal link between the behaviour and the
risk.
Essential features (cont’d)
What is management action?
The following are examples of what may constitute management
action:
• performance appraisals;
• ongoing meetings to address underperformance;
• counselling or disciplining a worker for misconduct or investigating
alleged misconduct;
• modifying a worker’s duties;
• denying a worker a benefit in relation to their employment;
• refusing a worker permission to return to work due to a medical
condition.
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Essential features (cont’d)
Who is covered by workplace bullying laws?
• A person will be covered by the anti-bullying laws if they
are a worker as defined in the Work Health and Safety
Act 2011 and work in a constitutionally-covered
business.
• Broadly, worker includes an employee, a contractor, a
subcontractor, an outworker, an apprentice, a trainee, a
student gaining work experience or a volunteer.
• Worker does not include a member of the Defence
Force.
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Essential features (cont’d)
What workplaces are covered?
A constitutionally-covered business is a person
conducting a business or undertaking (PCBU), conducted
principally in a Territory or a Commonwealth place, or
where the PCBU is:
• a constitutional corporation (financial or trading);
• the Commonwealth;
• a Commonwealth authority; or
• a body corporate incorporated in a Territory.
Essential features (cont’d)
Examples of workplaces that are not covered?
• State government departments and some State
government agencies
• Some local government organisations
• Unincorporated businesses, e.g. sole traders and
partnerships
• Corporations whose main activity is not trading or
financial
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Essential features (cont’d)
Exemptions - ADF and national security exemptions
• S.789FI – This part not to prejudice Australia’s defence, national
security etc.
• Nothing requires or permits actions that could reasonably be
expected to be prejudicial to:
- Defence
- National Security
- Covert and international operations of the AFP (s.12E WHS Act).
• Ss.789FJ-FL – Declarations that FW Act provisions do not apply.
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Essential features (cont’d)
Who may apply and how?
• A worker who reasonably believes he or she has been bullied at
work.
• No time limit on when application is made.
• Can have parallel actions, including in work health and safety
jurisdictions.
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Essential features (cont’d)
The role of the FWC
• Is preventative - not remedial, punitive or compensatory.
• Must start dealing with an application within 14 days.
• The FWC may make any order it considers appropriate if
satisfied that a worker(s) has been bullied and there is a
risk the bullying will continue.
• Order is to prevent the worker from continuing to be
bullied at work.
• Order cannot include pecuniary amount.
Essential features (cont’d)
In considering the terms of an order, the FWC must take
into account:
• any known final or interim outcomes of investigation by
another person or body;
• any procedure available to the worker to resolve
grievances or disputes;
• any known final or interim outcomes arising from any
such procedure; and
• any matters FWC consider relevant.
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Essential features (cont’d)
Type of orders
The Explanatory Memorandum to the FW Amendment Bill 2013
provides the following examples of potential orders:
• Stop specified behaviour
• Employer to regularly monitor behaviours
• Comply with bullying policy
• Provide information and additional support and training to workers
• Review employer’s workplace bullying policy
• Mediation between the parties
• Keep the direct parties apart
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How does the new jurisdiction
operate? FWC approach
• Early and prompt assessment of applications
• Some initial engagement with parties
• Streaming and prioritisation
• Case by case approach – mediation/conciliation only where
appropriate
• Early assignment of matters that are proceeding to Members
• Matters for determination – deal with as Member sees fit using
discretion and powers under the Act
• Take account of nature of parties, relationships and alleged
behaviour
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How does the new jurisdiction
operate (cont’d)?
• Service upon “employers” and individuals
• Responses
• “Triage” and information gathering
- confirm information on application and desire to proceed
- identify obvious jurisdictional problems
- information on process to all parties.
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How does the new jurisdiction
operate (cont’d)? • Panel Head to decide to how and when application to be dealt with
• Member to deal with an application as they see fit:
- preliminary conference
- mediation (only where appropriate)
- conciliation
- urgent hearing for interim or other orders
- jurisdictional determination
- hearing (if appropriate)
• Appeals
• Reference to WHS authorities
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Experience to date
• High level of inquiries to the FWC website – almost
90,000 views of the anti-bullying site since the beginning
of 2014 and around 140 anti-bullying related calls each
week to the FWC Help Line in April.
• 215 applications up to end April 2014.
• 32 applications resolved by agreement.
• 60 applications withdrawn.
• Around 10 decisions to date (includes decisions to
dismiss an application as being incomplete or because
the application fee not paid).
• One order made to date.
Experience to date (cont’d)
Key decisions
• McInnes v Peninsula Support Services Inc T/A Peninsula
Support Services [2014] FWCFB 1440
– Applicant may rely upon conduct that took place prior
to the commencement date of the new provisions.
• Arnold Balthazaar v Department of Human Services
(Commonwealth) [2014] FWC 2076
– Recipient of carer’s payment under the Social
Security Act 1991 is not a worker for the purposes of
the anti-bullying jurisdiction.
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Experience to date (cont’d)
Key decisions (cont’d)
• Ms SB [2014] FWC 2104
– Manager alleging that employees supervised by her
were bullying her.
– Decision canvasses what constitutes bullying
behaviour under the FW Act, including the meaning of
the terms ‘repeatedly behaves’, ‘unreasonable
behaviour’, ‘risk to health and safety’ and ‘reasonable
management action carried out in a reasonable
manner’.
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Experience to date (cont’d)
Bullying parties have included
• employee v manager/supervisor
• employee v employees
• supervisor v group of employees
• bully v victim (counter allegations)
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Experience to date (cont’d)
Types of allegations
• None of serious hazing or mobbing.
• Majority of matters have arisen in the context of
management action/decisions (e.g. disciplinary or
workplace directions).
• A few involving physical/verbal threats and/or physical
violence.
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Further information
Anti-bullying page on the FWC website - www.fwc.gov.au
contains a number of materials including:
• Anti-bullying Benchbook;
• Anti-workplace Bullying Guide; and
• Anti-bullying Quarterly Report.
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