Anti-bullying procedures in the Fair Work Commission – Theory and Practice

3 December 2014

The Fair Work Amendment Act 2013 (Cth) introduced a new anti-bullying jurisdiction to be administered by the Fair Work Commission (FWC). From 1 January 2014 the amendment provides that a worker for a constitutionally covered business in Australia can apply to the FWC for an order to stop the bullying.

What is bullying?

Workplace bullying is characterised as persistent and repeated negative behaviour directed towards an employee that creates a risk to health and safety.

Bullying can be direct or indirect. It can occur in many different situations, including face-to-face, over the telephone, online, via email or social media, or during daily working activities. It should be noted that reasonable management actions carried out in a reasonable manner are not regarded as bullying.

Some examples of direct bullying include:

  • displaying offensive material
  • excluding or isolating employees
  • harmful or offensive initiation practices
  • spreading malice or misinformation
  • physical assaults or threats
  • abusive or offensive language

Examples of indirect bullying include:

  • loading a person with work unreasonably
  • setting time frames that are arduous to achieve
  • deliberately denying access to information, consultation or resources
  • persistent and/or baseless criticism
  • unfair treatment in relation to assessing entitlements such as leave and/or training

Impacts of bullying include:

  • reduction in self-esteem
  • reduction in work performance
  • physical illness
  • relationship deterioration
  • negative publicity
  • loss of employment

Application Process

The FWC must ‘start to deal’ with an application within 14 days of receipt. This does not mean that a hearing would be listed within the 14 day period; just that the FWC will commence the process.

Once an application is lodged, the FWC checks that it is valid and then serves it on the employer and responses are requested. The FWC will then advise the applicant that a copy of the application has been served and all parties are given an opportunity to be heard before any hearing is conducted. Subsequently, a report is made to the panel head who makes a decision based on the information available and whether the matter is to be allocated to a member for mediation or determination. If the mediation remains unresolved, then it will be referred to a commission member for determination.

Prevention

Employers need to implement policies and procedures in their work environment in conjunction with employees’ health and safety representatives, to ensure the prevention of bullying in the workplace as far as is reasonably practicable.

Key processes an employer should consider are:

  • policies
  • training and education
  • risk assessments
  • hazard identification
  • complaint management
  • health and safety representatives
  • investigation
  • document management system

Discussion and Conclusion

Hentys has had early experience dealing with bullying complaints. Given the potential adverse findings to reputation and for occupational health and safety, most employers normally adopt a zero tolerance policy when it comes to bullying and address issues in a sensible and practical manner in accordance with their policies, training and education. The other feature of this jurisdiction is that often applications are made which are then withdrawn once the employer’s response is provided.

We would certainly endorse and support this approach – bullying can be seen as a first indication that the workplace culture is deficient and provides an employer with an early opportunity to address those issues, or in fact, resolve the complaint before it becomes more serious. There are also occupational health and safety implications in bullying behaviour. Often if bullying is not addressed, quickly and practically, it may lead to a general protections application or the bullied worker may make a WorkCover or stress-related claim.

Worst case scenarios, may result in significant damages being awarded to a worker who has been bullied over a long period and management has not taken any proper action to investigate the bullying. This was the case in Swan v Monash Law Book Co-operative.