Since 1 January 2014 the Fair Work Commission, under new legislation introduced by the former Gillard Government, has been able to deal with complaints regarding bullying at the workplace.
The powers of the Commission enable it to conciliate between the parties. If that cannot be achieved, it can then make necessary orders in relation to initiatives that need to be undertaken in order to prevent the bullying continuing into the future.
These orders could range from directives to implement anti-bullying policies throughout the company through to directives that focus on restricted contact between individuals where a person has been identified as engaging in bullying practices
For example, a matter held before the Commission resulted in a consent order between the parties that included the following:
- Shall have no contact with the applicant alone.
- Shall make no comment about the applicant’s clothes or appearance.
- Shall not send any emails or texts to the applicant except in emergency circumstances.
- Shall not raise any work issues without notifying the Chief Operating Officer of the respondent, or his subordinate, beforehand.
While these developments sound promising these decisions have been rare and there have been a number of problems encountered by employees who have made applications.
Firstly, the legislation that empowers the Commission to deal with bullying is restrictive in who can apply. Only what are deemed as ‘constitutionally covered organisations’ can be involved in bullying applications. In simple terms, this means that employees working in public sector areas or services which do not engage in financial trading may be exempt. Hopefully the restriction has minimal impact in regards to employees who are eligible to make an application.
Secondly, it appears from the lack of written decisions from the Commission, and from our own experiences, that the Commission is doing a lot of conciliation work in regards to applications. In other forums it may usually only hold one conciliation conference, however, with bullying applications the Commission is open to holding several conciliation sessions.
Whilst this is not necessarily a problem in itself it does mean that the process to resolve the matter can take a longer than original expected timeframe. Further, with less formal decisions, it means that we will have to wait further for more decisions before we can become confident as to how the Commission is dealing with the whole process.
Finally, of the few decisions the Commission has provided, it is now obvious that it is giving a wide interpretation as to the significance of the employer’s arguments that the applicant was being performance managed. What this means is that where an application for bullying has been made the employer has, in a number of cases, argued that the employee has lodged the bullying complaint as a response to being performance managed by the employer given their concerns with the employees work behaviour and output.
This can be a difficult issue as the employer argues that it was only carrying out a reasonable action in response the employees work performance problems and as such the application by the employee is a response to this action. In a couple of decisions thus far the Commission has agreed with the employer’s arguments and not accepted that the bullying claim was genuine.
The ASU understands that most of the applications having been dealt with thus far have been resolved through a mediation process and have not gone to formal hearing. In some respects this is not surprising as dealing with bullying applications is not a cut and dry legal area to deal with and no doubt the Commission will need time to familiarise itself with how to deal with this new jurisdiction.