Clifford Gouldson Lawyers

Commission’s Anti-Bullying Jurisdiction - What have we learnt so far?

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Nearly six months into the Fair Work Commission’s new anti-bullying regime, we have learnt a number of lessons as to the scope of the Commission’s powers.
From 1 January this year, workers have been able to apply to the Commission for a Stop Bullying Order.  The Commission is required to act on a Stop Bullying Application within 14 days of its receipt.    
Last year the Commission’s General Manager estimated that the Commission would receive over 3,500 Stop Bullying Applications over the course of the year. However in a recent report published by the Commission, it was stated that the Commission received only 151 bullying applications nationwide during the first three months. 
All of the applications received were acted on within the mandatory 14 day time limit, and most received action by the Commission on the day they were lodged. 
The vast majority of complaints by workers have been against their managers and supervisors. 
The first Stop Bullying Order
Of the 151 applications received formal orders were made in only 1 application.  The terms of the order provides some guidance as to what employers can expect from the Commission.  The Commission ordered that the employee who was the subject of the Complaint must:

  1. complete any exercise at the employer’s premises before 8:00am;
  2. have no contact with the applicant alone;
  3. make no comment about the applicant’s clothes or appearance;
  4. not send any emails or texts to the applicant except in emergency circumstances; and
  5. not raise any work issues without notifying the Chief Operating Officer of the respondent, or his subordinate, beforehand.

The above order makes it clear that the Commission is willing and able to impose unique and specific restrictions and obligations on an employer’s workforce. 
Importantly, a failure to comply with a ‘Stop Bullying Order’ can give rise to potential civil remedies (compensation) and even pecuniary penalties (fines).
The recent Full Bench decision
On 6 March 2013 the Full Bench of the Fair Work Commission handed down a decision that ruled that the Commission is able to hear bullying complaints regarding alleged bullying that occurred prior to the commencement of the bullying jurisdiction on 1 January 2014. 
The case is important because it clarifies that the Commission is able to make orders to stop bullying, even if the bullying occurred prior to 1 January 2014. 
In appealing the application, the employer (along with the Australian Industry Group which was invited by the Commission to make submissions in relation to the matter) argued that the Commission did not have jurisdiction to hear applications based on conduct occurring prior to 1 January 2014. 
Their main argument was that if the Commission was able to consider pre-1 January 2014 conduct, the new laws would effectively be acting retrospectively. 
The Full Bench did not accept the employer’s argument.  It held that although the Commission was being asked by the worker to consider pre-1 January 2014 conduct, the orders that the Commission was being asked to make only relate to future conduct.  
The legislation does not allow the Commission to make orders punishing past behaviour or orders ‘compensating’ victims of bullying behaviour. 
The sole purpose of the legislation is to allow the Commission to make orders stopping future bullying behaviour.  As such, the Full Bench held that the new laws do not act retrospectively and pre-1 January conduct can form the basis of a valid stop-bullying application.      
Complaints in relation to managers and supervisors
Despite the small number of Stop-Bullying Applications received, Commissioner Cribb from the Commission has recently confirmed that the vast majority of complaints relating to managers of workers related to circumstances where the worker was the subject of disciplinary action.
It is important that employers take steps to ensure that managers’ conduct falls within ‘reasonable management action’ because the definition of ‘bullying’ in the Fair Work Act 2009 (Cth) expressly excludes:
          ‘…reasonable management action carried out in a reasonable manner’.
Materials to assist employers
The Anti-Bullying Benchbook has recently been published by the Commission and is available
here. It provides employers and employees with information about the bullying claims process. 
The Commission has also released a
flowchart that maps the course of bullying applications through the Commission and details how the Commission must deal with Stop Bullying Applications.    
What employers need to know

  • Given that Stop Bullying Applications are more likely to be lodged against a manager or supervisor during disciplinary proceedings, employers should seek advice to ensure that disciplinary procedures fall within the ‘reasonable management action’ defence.
  • Employers should ensure that managers and supervisors engage in management action in a reasonable way on a day to day basis and keep records of the employer’s efforts to ensure this.  
  • The Commission is able to make detailed orders that uniquely address the allegations or bullying.  Detailed or overly specific orders may be difficult (from an employer’s perspective) to ensure compliance. 
  • Employers only have one week in which to respond to a Stop Bullying Application once received from the Commission.
  • Employers should carefully consider the information provided to the Commission in response to ensure that it demonstrates:  1.  the processes and policies in place (both formal and informal) relating to the internal receipt and investigation of complaints of bullying within the workplace; and 2.  that the conduct of supervisors and managers falls within the exception of reasonable management action taken in a reasonable way.

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