The new anti-bullying laws - Fair Work Commission’s experience Commissioner Anna Lee Cribb 9 October 2014
Nov 28, 2014
The new anti-bullying laws -
Fair Work Commission’s
experience
Commissioner Anna Lee Cribb
9 October 2014
Context
Changes in industrial relations:
- from collective to individual disputes
- unfair dismissal applications
- adverse action claims
- anti-bullying applications
© Commonwealth of Australia — Fair Work Commission 2
Genesis of new provisions
House Standing Committee on Education and
Employment report:
- right of legal recourse for workplace bullying
- foundation definitions
- ‘worker’
- what behaviour constitutes bullying
- exception to bullying (reasonable
management action)
© Commonwealth of Australia — Fair Work Commission 3
Outline
• Key features of the new laws
• Profile of the applications
• What is the process?
• Reflections on experiences so far
© Commonwealth of Australia — Fair Work Commission 4
Key features
What is bullying?
• A worker is bullied if:
• While at work in a constitutionally-covered business;
• an individual or group of individuals 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
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© Commonwealth of Australia — Fair Work Commission 6
Key features (ctd)
Who can apply?
• A worker who reasonably believes he or she has been bullied at
work
• Worker – as defined in WHS Act 2011 and means in effect:
• An individual who performs work in any capacity including as an
employee, a contractor, a subcontractor, an outworker, an
apprentice, trainee, student on work experience or a volunteer
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Key features (ctd)
What workplaces are covered?
Constitutionally-covered businesses
These are:
• a constitutional corporation (trading or financial);
• the Commonwealth or a Commonwealth authority
• the ADF is excluded
Key features (ctd)
What is bullying behaviour?
• ‘repeatedly’
- has to occur more than once
- recent Commission decision
• ‘behaves unreasonably’
- reasonable person test of ‘unreasonably’
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Key features (ctd)
Reasonable mgt action taken in reasonable
manner:
• for it not to be bullying:
- action must be management action
- must be reasonable for the mgt action to be taken
- mgt action must be carried out in a manner that is
reasonable
• range of mgt actions caught by exclusion is very wide
© Commonwealth of Australia — Fair Work Commission 9
Key features (ctd)
Creates a risk to health and safety:
- the possibility of danger to health and safety
- a causal link exists between the behaviour and the
risk
- behaviour may not be the only cause but is a
substantial cause of risk
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What is the process?
Process:
- triage
- preliminary conference/mediation
- purpose of preliminary conference
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What is the process (ctd)?
• Hearing/arbitration
- may make an order to stop bullying
- order is to prevent the worker from being bullied
- cannot include pecuniary amount
- must consider any known outcomes of WHS
investigation, internal grievance or other procedures
- Orders made (consent)
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© Commonwealth of Australia — Fair Work Commission 13
Profile of applications
1 January to 31 March 2014:
• 151 applications (133 employees, 3 labour hire employees, 1
apprentice, 1 volunteer)
• 32 applications withdrawn
• 23 resolved by mediation/conciliation
• 1 order (by consent) issued
Profile of applications (ctd)
• Bullying parties included:
- manager/supervisor (109)
- another employee (27)
- group of employees (20)
- subordinate (3)
• Profile of businesses
- 100+ employees - 67
- 50 -100 employees - 37
- less than 15 employees - 19 © Commonwealth of Australia — Fair Work Commission 14
Profile of applications (ctd)
• Types of industries
- Clerical - 23
- Retail - 13
- Health & Welfare - 11
- Banking, finance and insurance - 8
- Aged care & Manufacturing - 7
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Reflections
Experiences so far:
- industrial/ conciliation approach
- person named
- ongoing employment relationship
- unrepresented applicants
- is the behaviour complained about bullying
behaviour?
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