Joe Catanzariti - Fair Work Commission - Keynote address: Future direction from the Fair Work...

9/10/2014

© Commonwealth of Australia — Fair Work Commission 1

The Fair Work CommissionFuture Directions &

Anti-Bullying Jurisdiction

Vice President Catanzariti

8 October 2014

• Future Directions

• Improving our performance

P ti f i

Outline

• Promoting fairness

• Innovation

• The next phase

• Bullying

• The role of the FWC

• The case management approach of the Commission• The case management approach of the Commission

• The experience to date

• Decisions and orders

2 © Commonwealth of Australia — Fair Work Commission

9/10/2014


• Promoting fairness and improving

accessaccess

• Efficiency and innovation

• Accountability

• Productivity and Engagement


Improving our performance

Reserved decisions benchmarkNovember 2013 – April 2014

Time will run from the final day of the hearing or the date of receipt of the last written submission, whichever is later.


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Promoting fairness

Online information tools


SMS notifications

Innovation


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Hearings lists for mobile devices

Innovation

devices


Continual improvement – the next phase

Some of the new initiatives include:

• The introduction of an electronic case management system to i i ti d d t f tiimprove processing times, and reduce costs for parties

• A review of the process for determining enterprise agreement approval applications to ensure the most timely and efficient resolution of these matters

• A qualitative research project to identify clauses in enterprise agreements that enhance productivity or innovation

I j ti ith k t k h ld th d l t d

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• In conjunction with key stakeholders, the development and implementation of a strategy for the promotion of cooperative and productive workplace relations that facilitate change and foster innovation.

© Commonwealth of Australia — Fair Work Commission

9/10/2014


Lodgement to first hearing performance

Improving our performance


Continual improvement – the next phase

• Develop further benchbooks and make them available on-line.

• By the end of 2015 we will provide access to the audio files of most Commission hearings.

• In 2014-15 we will review the scope of the current pro-bono lawyer program to provide these services on a broader geographical and jurisdictional basis.

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• Evaluate our performance against the Tribunal Excellence Framework.

© Commonwealth of Australia — Fair Work Commission

9/10/2014


• Bullying has a particular meaning (s.789FD):

• Unreasonable behaviour by an individual(s) at work

• Not reasonable management action taken in a reasonable

Anti-bullying: Key elements

Not reasonable management action taken in a reasonable manner

• Repeated (unreasonable behaviour)

• Risk to health and safety (of the workers)

• To make an order – there must be a risk of bullying continuing (in the relevant relationship at time of considering any order)

• Focus is upon the conduct of individuals in the workplace – not h l ’ dupon the employer’s conduct

• “An individual or group repeatedly behaves unreasonably towards the worker or a group of workers” (s.789FD)


• S.789FE – FWC to deal with promptly

• S.789FF – FWC may make orders to stop bullying

• Start dealing within 14 days (inform itself)

The role of the FWC

• Start dealing within 14 days (inform itself)

• May make an order to stop bullying if:• An application made; and

• Satisfied that worker(s) has been bullied and there is a risk will continue

• The order is directed to prevent the worker from being bullied but cannot include pecuniary amount

• The role of the FWC (and the remedy) is preventative (not remedial, iti t )punitive or compensatory)

• Must consider any known outcomes of WHS investigation, internal grievance or other procedures and any other relevant matter


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Focus of any order is on stopping the conduct and enabling normal working relationships to resume

Explanatory Memorandum provides examples of the type of

The role of the FWC (cont.)

Explanatory Memorandum provides examples of the type of orders the Commission may consider:

• Stop specified behaviour

• Employer to regularly monitor behaviours

• Comply with bullying policy

• Provide information and additional support and training to workersworkers

• Review employer’s workplace bullying policy

• Interpersonal mediation

• Keep the direct parties apart?


• The underlying principles

• Early and prompt assessment of the applications

Some initial engagement with parties

The FWC case management model

• 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 Actusing discretion and powers under the Act

• Take account of nature of parties, relationships and alleged behaviour

• Promote cooperative and productive workplaces


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• Public information provided about jurisdiction and role

• Application – smart form with paper-based alternative

Ser ice pon “emplo ers” and then indi id als

The FWC case management model (cont.)

• Service upon “employers” and then individuals

• Responses

• “Triage” and information gathering

• Confirm information on application and desire to proceed

• Identify obvious jurisdictional problems

• Information on process to all parties

• Gain information for a preliminary administrative report made – provided to Panel Head who will asses and allocate


• Panel Head to decide to how and when to be dealt with:

• Mediation (only where appropriate - by Members or specifically trained mediators on staff) not promoting $ settlements

The FWC case management model (cont.)

trained mediators on staff) not promoting $ settlements

• Assigned to Member to hear as they see fit:

• Preliminary conference (likely in most cases)

• Conciliation

• Urgent hearing for interim or other orders

• Jurisdictional determination

• Merit and remedy hearing (appropriate to the circumstances)

• Orders – subject to enforcement through the Federal Court

• Appeals – normal rules (by leave)

• Reference to WHS authorities – alternative or additional option


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• High level of inquiries to FWC website and AB calls to the FWC Help Line

348 AB li ti b d J 2014

Experience to date

• 348 AB applications by end June 2014

• Triage working effectively to confirm applications and facilitate effective responses

• 100% of matters commenced within 14 day period

• A proportion of applications were withdrawn when t f d /j i di ti l i tnature of remedy/jurisdictional requirements

confirmed (some not served)


• Most applications involve alleged bullying by fellow employees or managers/supervisors and the issue of reasonable management action is regularly raised

Experience to date (cont)

by employers

• Early matters have been assigned to Members (90%) or staff mediators

• Of those assigned matters that have been finalised –46% resolved, 39% withdrawn, 14% dismissed (incomplete applications, jurisdiction or merit)(incomplete applications, jurisdiction or merit)

• Other applications being considered by the Commission – most via preliminary conferences –some decisions pending


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• Full Bench on pre-1 January 2014 conduct - McInnes [2014] FWCFB 1440

• Issue – whether the Commission has jurisdiction to hear and

Decisions and orders

jdetermine an application for an order to stop bullying which wasbased on alleged bullying conduct which occurred before 1January 2014

• Decision - The Full Bench said:

• Part 6-4B of the Act is legislation basing future action on pastevents, and hence is not properly characterised asretrospectivep

• Commencement provisions – applications (not conduct) afterdate

• Applicants able to rely upon pre 1 January 2014 conduct

• Note – still need to demonstrate future risk


• Single Member Decisions:

• McInnes – decision about constitutionally-covered

Decisions and orders (Cont.)

c es yworkplace (constitutional corporation) - 2014 FWC 1395

• Consent orders issued in A v R on 21 March 2014

• Arnold Balthazaar v Raelene McGuire; Department of Human Services (Commonwealth) – [2014] FWC 2076

• Ms SB – decision on whether bullying occurred [2014] FWC 2104

• Shaw v Australia and New Zealand Banking Group Limited t/a ANZ Bank and Anor – decision - no risk of continued bullying - [2014] FWC 3408


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• The Applicant v General Manager and Company C – not repeated incidents – [2014] FWC 3940

Decisions and orders (Cont.)

• Justin Corfield – Application for de-identification of parties – [2014] FWC 4887

• Paul Hill v L E Stewart Investments Pty Ltd t/a Southern Highlands Taxis and Coaches and others - no reasonable prospects – [2014] FWC 4666


• FWC website www.fwc.gov.au :

• AB Benchbook

AB C M t M d l

Further information

• AB Case Management Model

• AB Guide

• Rules and forms

• House of Representatives – Standing Committee report “Workplace Bullying – We just want it to stop”

• Safe Work Australia – Guidance Notes (was a draftSafe Work Australia Guidance Notes (was a draft COP): Preventing and Responding to Workplace Bullying

• Quarterly reports


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