16 December 2013
Alison Spivey, Senior Associate
From 1 January 2014 new and unprecedented anti-bullying laws will give rise to additional challenges for employers in managing what is an already complex and pervasive issue in the workplace. Here we examine the key features of the new anti-bullying laws, how applications are likely to be managed under the new laws, and provide tips for assessing whether your organisation is ready to meet these challenges.
Changes to the FW Act have conferred a new anti-bullying jurisdiction on the Commission that will take effect from 1 January 2014.
Significant concern and uncertainty about the potential impact of the new anti-bullying laws exists in the face of (possibly conservative) estimates that more than 3,500 applications may be made to the Commission in the first year of the new laws alone.
It is unlikely that much of this uncertainty will be resolved until the new laws have been operating for some time. However, some guidance has recently been provided for parties in lodging or responding to anti-bullying applications made under the new anti-bullying laws, by way of the Commission releasing:
- a summary of the case management model it intends to apply in the new anti-bullying jurisdiction (“Case Management Model”); and
- for public consultation, a draft Anti-Bullying Benchbook.
The Case Management Model and draft Anti-Bullying Benchbook are examined below, together with guidance for assessing whether your organisation is ready to respond to the challenges of the anti-bullying laws.
Key features of the anti-bullying laws
The key features of the anti-bullying laws may be summarised as follows:
From 1 January 2014 a worker in a constitutionally-covered business who reasonably believes that he/she has been bullied at work, may apply to the Commission for an order to stop the bullying.
‘Reasonable management action taken in a reasonable way’ is not bullying.
The Commission must ‘start to deal with’ an application within 14 days of it being made. This does not require that an application be listed for conference or hearing within this timeframe – it may mean the Commission starts informing itself about the application through its own enquiries or requiring that information be provided by other parties.
The Commission may make any order it considers appropriate (except orders requiring the payment of a pecuniary penalty) provided that a worker has made an application and the Commission is satisfied that:
When making an order, the Commission must also take into account:
Examples of the orders that the Commission may make are:
An order may be directed to the employer or principal of the affected worker, the employer or principal of an alleged bully and an alleged bully and/or co-workers of the affected worker.
Applicants remain able to make multiple applications under the FW Act or other legislation, such as work health and safety legislation, in relation to the circumstances the subject of the application.
Case Management Model
The summary of the Case Management Model recently released by the Commission provides an overview of the Commission’s jurisdiction under the new-anti bullying laws, and sets out the key steps in the Case Management Model (see Figure 1).
Overall, the Case Management Model reflects a focus on ensuring the system for dealing with anti-bullying applications is sufficiently flexible to manage:
- the “multiple and sometimes complex legal and practical relationships” between the parties to those applications; and
- the spectrum of circumstances and behaviours that the Commission may face in dealing with applications, including unrepresented parties and “challenging” behaviours from the parties.
The Case Management Model also acknowledges the need for the Commission to balance its competing objectives of:
- performing its powers and functions in an open and transparent manner; and
- maintaining appropriate confidentiality for the parties
due to the potential reputational damage attaching to anti-bullying applications.
In order to manage these competing objectives, the Case Management Model provides that the Commission will:
- alert parties to the availability of orders prohibiting or restricting publication of evidence, identity of parties and/or decisions (or parts thereof);
- unless determined otherwise, conduct mediations and conferences in private (and the identities of parties will not be disclosed in public listings); and
- unless orders are made for a private hearing, conduct hearings in public.
The Case Management Model also requires that Commission members and staff receive training specific to their roles and functions to assist in dealing with anti-bullying applications.
In addition to the overview of the jurisdiction and the key steps in the Case Management Model, the summary includes observations on the nature of the jurisdiction conferred on the Commission by the anti-bullying laws and the implications of that jurisdiction for the Case Management Model and the Commission’s role.
Of particular note in relation to the proposed operation of the anti- bullying laws are the Commission’s observations that:
- prevention and resolution of alleged bullying within the workplace should be encouraged where appropriate;
- priority must be given to applications where there is a significant risk to parties or the employment relationship; and
- applications that appear to be beyond the Commission’s jurisdiction should be isolated and jurisdictional issues dealt with first.
In addition to the summary of the Case Management Model, the Commission has also released an Anti-Bullying Benchbook for public consultation.
The notes on the draft Anti-Bullying Benchbook confirm that as the anti- bullying laws have not commenced, and there are as yet no decisions of the Commission or any relevant court providing “definitive guidance as to the meaning and operation” of those laws, the Benchbook will be “updated and modified as appropriate” as relevant decisions are issued.
That aside, the Anti-Bullying Benchbook nonetheless sets out a range of case examples on bullying in the workplace derived from a number of legal contexts and cases heard in other jurisdictions, and provides that the following behaviours may be considered bullying:
- aggressive and intimidating conduct;
- belittling or humiliating comments;
- spreading malicious rumours;
- practical jokes or initiation;
- exclusion from work-related events;
- pressure to behave in an inappropriate manner; and
- unreasonable work expectations.
Public consultation on the draft Anti-Bullying Benchbook closes on 27 December 2013. Please contact PCS if you would like assistance in making a submission in respect of the draft Anti-Bullying Benchbook.
In addition, in November 2013, Safe Work Australia released its “Guide for Preventing and Responding to Workplace Bullying”, to assist persons conducting a business or undertaking in meeting their obligations under the model work health and safety laws.
Preparing your organisation for the new anti-bullying laws
PCS has previously published a critical measures table against which your organisation’s readiness for the anti- bullying laws could be measured, and against which we could assist your organisation to strengthen its capacity to defend any claims of bullying.
This table is replicated below.
Figure 1. Key Steps in the Case Management Model