A look at the Fair Work Commission's approach to anti-bullying to date
April 09, 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Sixty percent of applications were withdrawn and of these, 47% were withdrawn during early case management, 28% were withdrawn prior to proceedings and 25% were withdrawn after a conference or hearing but before a decision was given.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