April 9, 2015
The Fair Work Commission’s Anti-Bullying Jurisdiction is now 15 months old and has been described as a “failed experiment” (The Australian, 25 February 2015), receiving less applications than expected and making only one order to prevent bullying during 2014.
That’s a bold statement. Let’s have a look at the figures released by the Commission to date.
Between its inception on 1 January 2014 and 31 December 2014, the Commission received 701 applications for an order to stop bullying at work. The least applications were received in the first quarter (21.5%) and the most in the second (27.4%). It was generally expected the increase in applications over the year would be more pronounced, as more people became aware of this avenue of addressing workplace conflict and because in March 2014, the Commission ruled its jurisdiction extended to applications relating to behaviour that occurred prior to 1 January 2014. Bernadette O'Neill, General Manager of the Commission, advised in late 2013 that the Commission was expecting up to 3,500 applications per year.
It is true that in 2014 the Commission made only one order to prevent bullying, however it should not be assumed that the majority of applications were dismissed. Below is a breakdown of the outcomes of the 527 matters finalised during 2014:
Sixty percent of applications were withdrawn and of these, 47% were withdrawn during early case management, 28% were withdrawn prior to proceedings and 25% were withdrawn after a conference or hearing but before a decision was given.
One hundred and fifty-four applications were resolved during the process. Fifty-two applications were subject of mediation (being approximately 10% of the number of resolved matters).
Of the 55 applications dismissed, only seven were due to bullying at work not being found and/or no risk of bullying continuing. The remaining were dismissed due to jurisdictional objection being upheld or under s587 of the Fair Work Act (applications not made in accordance with the Act, deemed frivolous or vexatious or having no reasonable prospect of success).
In 65% of the applications, the alleged perpetrator of bullying was identified as the applicant’s manager. Individual colleagues were nominated in 16% of applications and groups of colleagues in 8% of applications. Only 1% of applications identified a subordinate as the perpetrator of bullying.
Sixty-seven industries were represented in applications to the Commission. Thirteen percent of applications were made by employees in the Clerical industry, followed by Health and Welfare Services (11%), Retail (8%), Educational Services and Manufacturing (both 6%) and Social, Community, Home Care and Disability Services and the Hospitality industry (both 4%).
Fifty-two percent of applications were from employees of large employers, employing in excess of 100 staff. Twenty percent were from employees of organisations employing 15 to 50 staff, and 10% from employees of organisations employing less than 15 staff. Only 8% of applications were from employees of organisations employing 51 to 100 staff.
So, what does all this mean?
What about the cases decided by the Commission? The case of Applicant v Respondent, PR 548842 offers a valuable insight.
The Applicant applied to the Fair Work Commission (“Commission”) for an order to stop bullying. On 21 March 2014, the Commission, following a conference between the parties, made various consent orders including orders that the Respondent:
• not have any contact with the Applicant alone
• not make any comments about the Applicant’s clothes or appearance
• not send emails or texts to the Applicant except in emergency circumstances
• not raise work-related issues with the Applicant without first notifying senior management.
The parties were allowed to relist the matter if they experienced any difficulties.
On 10 September 2014, following a further conference between the parties, the Commission amended the previous orders stating that in doing so “it was contemplated that, in the next six months, it might be possible to dismiss all orders and allow the future relationship of the parties to be managed at the workplace”.
On 16 December 2014 the Applicant made a further application to the Commission to revoke the previous orders.
The applicant stated that:
“Since our last meeting there has been a negligible amount of conflict between A and myself, and I have felt comfortable approaching my supervisor, B, with any concerns that I have. The past year of intervention from Fair Work has been very positive and helpful and I am very grateful for the support that has been given to me by Senior Deputy President Drake.
I think that the New Year is an appropriate time to lift the orders and that it is in the best interest of everyone involved to do so.”
On the application of the Applicant, the Commission decided to revoke the previous Orders of 10 September 2014.
This case, in our view, shows the collaboration and teamwork possible between the Commission, employer, applicant and respondent. It shows the willingness and preparedness of the Commission to listen and respond promptly to the parties, make practical and realistic orders and to work together with parties who are serious about resolving bullying. To that end, the Commission is prepared to continue working with the parties to review and vary orders as required.
This case demonstrates the Commission’s readiness and commitment to work in the real world, taking into account the constantly evolving changes in the workplace and working relationships.
This approach of the Commission is particularly valuable when the parties are expected to go on working together. Resumption of normal working relationships is perhaps the most difficult challenge facing parties to a dispute. The Commission’s approach can only assist in facilitating resumption of working relationships.
Whilst the Commission cannot award compensation or issue fines and penalties in bullying matters it can case-manage matters with considerable effect. It can make any order it considers appropriate to prevent a worker being bullied.
In our view, the case demonstrates a clear intention on the part of the Commission to focus on resolving issues.
We have always maintained, and continue to maintain, that workplace behaviour is best managed by local management at the local level. In the words of the Commission, “managed at the workplace”. However, when that fails to resolve bullying, parties may approach the Commission with some degree of confidence that the Commission will not hesitate to make orders to address the bullying.
For more information regarding workplace behaviour investigation and management, please contact Dominic Lallo of LS Partners.
Quarterly reports are available from the Commission at www.fwc.gov.au/about-us/reports-publications/quarterly-reports
November 10, 2014
Dominic teamed up with editor Georgina Jerums to create the article 'Accountability: Managing Bad Behaviour' which includes real-life examples and practical tips for executives to follow.
We've included an excerpt of the article below.
September 3, 2014
Amy is the Senior Legal Counsel - Workplace & Liability Investigations at LS Partners, based in the Melbourne office, and has been a part of the team since 2013.
Amy balances the demands of her professional career with bringing up a young family and speaks with LIJ on how she succeeds at both.
Click here to read the full article.
August 13, 2014
By Dominic Lallo, Senior Legal Counsel - Workplace Behaviour Consulting Services
The recent decision of the Full Court of the Federal Court of Australia in the matter of Richardson v Oracle Corporation Australia Pty Ltd has taken workplace behaviour to another level.
It is a wakeup call to all employers. Above all, the amounts that Courts and Tribunals are likely to award will increase substantially.
The case highlights a number of features the Court was critical of in in the manner the complaint was addressed and investigation was conducted.
Those of you who participated in our recent webinars and in particular our webinar “How to Investigate like a Pro” will recall our coverage of these issue and our recommendations to avoid the pitfalls.
July 10, 2014
After a terrific response to the first and second seminars, LS Partners is presenting the final webinar in its Workplace Behaviour Management professional development series with the Australian Human Resource Institute (AHRI) on Thursday 17 July.
The webinar, scheduled for a 12pm start, is titled ‘Resolution of Issues and Disputes – Early Intervention’ and is an in-depth conversation between LS Partners’ Senior Legal Counsel – Workplace Behaviour Consulting, Dominic Lallo, and LS Partners’ Psychologist and Mediator, Sandy Hirschfield.
July 9, 2014
By Stephanie Matthews - General Manager NSW
Do you have a small business? Do you feel unsure about your health and safety obligations? Make sure you take advantage of the services offered by the regulatory body in your state.
June 13, 2014
LS Partners' Dominc Lallo Senior Legal Counsel - Workplace Behaviour Consulting has collaborated with the team at schoolgovernance.net.au to produce the article '4 Tips to Manage Workplace Behaviour - A Principal's Guide'. The article is the first in a series with the website and demonstrates LS Partners' focus on increasing the awareness of workplace behaviour management in the education sector.
June 12, 2014
LS Partners is presenting the second webinar in its Workplace Behaviour Management professional development series with the Australian Human Resource Institute (AHRI) on Thursday 19 June. The webinar, scheduled for a 12pm start, is titled 'How to conduct workplace investigations like a pro' and will be presented by Managing Director Steve Castrisios and Senior Legal Counsel - Workplace Behaviour Consulting, Dominic Lallo.
AHRI usually charges a fee for webinar attendance, however LS Partners is offering all clients the opportunity to attend the session at no cost if registration is confirmed via firstname.lastname@example.org by Tuesday 17 June.
June 10, 2014
By Stephanie Matthews - General Manager NSW
You may have noticed an increase in the number of reality television shows focussed on work. Specifically, dangerous or unpleasant work. Ice Road Truckers follows a number of Truck Drivers driving over frozen lakes in Alaska and Canada. Deadliest Catch follows a number of fishermen on board vessels in the Bering Sea. Swamp People follows a number of ‘Gator Hunters’ hunting American alligators in Louisiana. Dog the Bounty Hunter follows a… you get the idea.
Although heavily sensationalised, work environments of all types can be dangerous and understanding high risk scenarios/industries is key to maintaining a safe work environment.
April 29, 2014
We are often asked on the potential benefits of conducting surveillance on mental injury claims, especially when the matter does not involve the claimant conducting employment related activities during the period of the claim.
This recent article in both the Melbourne Age and Sydney Morning Herald reports on the impact the surveillance in assessing the credibility of the claimant on a Comcare matter.
April 28, 2014
LS Partners is proud to have sponsored the Association for Women In Insurance NSW Autumn Luncheon on 10 April with member only door prize.
This Association is the Insurance industry's premier networking group. The Association organises six major events each financial year. The events are held within the Sydney Central Business District and take the form of luncheons, breakfasts and cocktail events.
April 5, 2014
We are very pleased to officially announce LS Partners’ strategic investment in Your-Call Disclosure Management Services.
Your-Call recently celebrated its 10th year of operation. Glenn Birrell, the founder, pioneered Australia’s first, fully integrated web-based solution for the receipt of information from whistleblowers.
March 12, 2014
"Why, when whistleblowers will readily forewarn you given the chance, burying your head in the sand is needlessly risking not just your brand and reputation!"
KPMG’s 2012 Australian/New Zealand Fraud Survey outlined the extreme growth in corporate loss attributed to fraud between 1997 – 2012 See figure one. The report outlines the importance of preventative controls and risk strategies, along with the value confidential third party reporting programs deliver.
February 1, 2014
The February 2014 issue of the HR Monthly magazine has a timely article on swearing in the workplace. LS Partners has a one page feature advertisment focusing on the importance of independent and expert workplace behaviour investigations.
December 18, 2013
Inappropriate and unlawful behaviour in the workplace takes many forms. It takes the form of discrimination, harassment, bullying, sexual harassment, workplace violence and victimisation. Such behaviour is no different to theft. Sometimes it even looks like ‘harmless fun’ in the practice of joke telling or office gossip, as well as inappropriate use of social media. It may result in major costs to your business. It frightens away your best employees and silences the eager and the earnest people in your organisation. Bullies in the workplace can rob your organisation of the best people.
November 26, 2013
A function was held at the RACV City Club to launch and celebrate the change of name from LS & Associates to LS Partners. We had over 80 people attending, including key managers from LS Partners' Melbourne, Hobart and Sydney offices.
Welcoming smile from Stephanie Matthews and co
November 1, 2013
A good starting point is to ensure the employer’s senior and executive management have a good understanding of what constitutes unacceptable workplace behaviour. They need to know that such behaviour includes:
October 8, 2013
LS Partners is proud to be a sponsor of the Australian Life Underwriters and Claims Association Victoria (ALUCA) mini-conference at the Langham Hotel on 10 October 2013.
ALUCA is a professional association established to advance the knowledge and professionalism of its members in underwriting and claims issues relating to life and disability insurance products.
October 24, 2012
The rebranding of LS & Associates coincides with the strategic partnership of Steve Castrisios and Vincent Quattropani, who have over 35 years of combined experience in the investigation industry.
Our new brand identity represents the amalgamation of LS & Associates' proven track record with our innovative approach to servicing the local and national needs of our clients.
We are excited with our new identity and look forward to reintroducing ourselves to our clients and the industry under our new name.
Introducing LS Partners...