Following on from our latest “How to” guide in preparation for the new anti-bullying legislation, we now turn to comments and literature from the Fair Work Commission, which is preparing the ground for what they consider will be a “significant number” of workplace bullying applications and enquiries in the new year.
As it stands
From 1 January 2014, three pre-requisites must be satisfied before bringing an application before the workplace bullying tribunal:
- The applicant must be a worker employed by a constitutionally covered business; and
- An individual or group must have repeatedly behaved unreasonably towards the applicant at work; and
- That behaviour must create a risk to the applicant’s health or safety.
The new literature helps to contextualise the scope of the FWC’s new anti-bullying jurisdiction and the remedies that the Commission can order.
The most recent developments include:
- An Anti-Bullying Case Management Model;
- Announcing the head of the newly formed anti-bullying panel; and
- A draft bench book for public comment.
All of the FWC’s documentation reiterates that the workplace bullying laws do not create a compensation jurisdiction.
The aim of the legislation is directed at preventing workers from being bullied at work and restoring working relationships; not financial compensation.
However for employers this does not mean potential workplace bullying applications will be without financial ramifications.
A person who contravenes an order of the FWC under the new jurisdiction will be liable for a civil remedy order.
Currently, the maximum amount that may be ordered as a penalty is $51,000 (in the case of a body corporate) or $10,200 (in the case of an individual).
To ensure practical, efficient and fair responses to workplace bullying applications, the FWC will review the new jurisdiction in July 2014 and then again in early 2015.
Complex and Novel
The national workplace bullying regime is an entirely new jurisdiction and an entirely new approach to the systemic problems caused by workplace bullying.
As a result, complex legal and practical relationships will need to be taken into account by the FWC’s anti-bullying panel.
Employers now need to be conscious of the efforts they can make to ensure workplace bullying problems don’t escalate.
Worryingly for employers, there remains no express limitation for applicants in terms of making multiple bullying applications under the FW Act and other statutory regimes such as occupational health and safety legislation.
Aggrieved employees taking a multi-faceted approach against under-prepared employers will undoubtedly cause headaches.
There has even been speculation in the legal community about the extent that the Fair Work Act’s General Protection’s provisions may also be utilised by disgruntled applicants who consider they have been subject to less favourable treatment following a bullying complaint.
These comments from the FWC about how it is proposing to manage the new anti-workplace bullying legislation simply reiterate the gaps in legislation that many commentators have already highlighted.
For employers the key message is preparation.
As the start of 2014 approaches, time is running out to tie up loose ends and finalise your organisation’s approach to bullying.
Employers must know how to properly respond to a workplace bullying report.