When we left off in Part 1, the Fair Work Commission was due to launch its new anti-bullying regime. Two months later, the first matters have been heard and the process is well underway.
Earlier this month, the Fair Work Commission (FWC) released the first statistics on the anti-bullying jurisdiction. At the National Workers’ Compensation Summit on 27 February 2014, Commissioner Cribb told attendees the Commission had received 66 claims since 1 January.
Too Early to Judge
Commissioner Cribb also said a majority of the applications were against supervisors, with only two supervisors claiming bullying by subordinates. However, as the Act provides an exception to bullying conduct for “reasonable management action”, it is likely a majority of the applications will be dismissed on this basis.
As highlighted in a recent media release from the FWC, traditionally, January and February are quieter months. Commission President, Justice Iain Ross, has commented that it is “too early to say” whether the figures to date were indicative of any likely trend for such applications. Interestingly, the bullying help line receives approximately 200 calls per week.
Claims currently underway
The FWC started all 66 matters within the prescribed 14 days, and nine were withdrawn by the applicants during the preliminary assessment process. Panel Head, Commissioner Peter Hampton, exercised the FWC’s power under section 587 of the Fair Work Act 2009 (Cth) to dismiss a further three. In these matters, the filing fees were not paid and the application forms were incomplete, with the applicants failing to provide further details.
Each of the remaining 54 matters have so far been dealt with through the confidential mediation process.
Bullying Conduct Pre-2014
Another matter which is currently before the Full Bench of the FWC will determine whether bullying conduct which occurred prior to 1 January 2014 can be considered by the Commission in making an order. Vice President Hatcher has commented that the introduction of the new regime does not “attach liability to, or punish, past conduct, such as through an award of compensation”, opening the door potentially for such conduct to be considered.
However, even if such conduct can be taken into account, the employee will need to demonstrate there is a risk the bullying will continue. Employee groups have consequently complained that, if such conduct cannot be considered, then employees will need to wait to be subjected to further bullying before any action can be taken. The FWC will hand down its decision in due course.
Mediation Appears to be Working
From the information released by the Commission to date, it appears the mediation process has been largely adequate for resolving the anti-bullying matters currently before the FWC. Consequently, it may be a matter of time before we gain a greater insight into the method and orders adopted by the Commission in this jurisdiction.
In the meantime, however, what can we expect from the anti-bullying jurisdiction?
For matters that are not resolved during the mediation process, they will proceed to a conciliation or hearing. Once the matter is heard, the Commission Member will make a determination on the matter. The Member may make any order they consider appropriate to prevent further bullying occurring, which may include:
- requiring the individual or group to cease the bullying behaviour;
- regularly monitoring the behaviours by an employer;
- ensuring compliance with the employer’s anti-bullying policy;
- requiring further support, information and training be provided to staff; and/or
- reviewing the employer’s current anti-bullying policy.
It is important to note, however, the jurisdiction is not a compensatory one, and the FWC will not order penalties or fines, or monetary compensation to an applicant. The process is still in the infant stages, and only time will provide more guidance as to the approaches of the Commission in this jurisdiction.
Watch this space!