John Kovacic - Fair Work Commission - Reviewing the legislation – an update from the Fair Work...

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


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.


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.


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



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




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.


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.



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.




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.


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




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.



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.



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.


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.




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


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



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.



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


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.



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’.



Bullying parties have included

• employee v manager/supervisor

• employee v employees

• supervisor v group of employees

• bully v victim (counter allegations)



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.


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.


http://www.fwc.gov.au/

John Kovacic - Fair Work Commission - Reviewing the legislation – an update from the Fair Work...

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