Checklist: The 2014 ‘bullying’ jurisdiction of the Fair Work Commission

On 1 January 2014, amendments to the Fair Work Act 2009 will come into effect. Among the amendments is a new jurisdiction for the Fair Work Commission to hear complaints of bullying, and empower it to make ‘any order as it sees fit’.  

• Which employers and employees are covered under the new system?

The new system may cover many employees who are employed within the “federal system”. It also extends to casual employees, subcontractors and contractors. 

• What has changed?

The changes give the Fair Work Commission power to deal with complaints about bullying. Previously, this would occur under a general protections claim with the Fair Work Commission, or a complaint to WorkSafe (WA) for breach of the Occupational Health and Safety Act (failing to maintain a safe workplace by allowing an environment in which bullying is allowed).  

Arguably, bullying claims under the general protections process were harder to prove or more likely to result in costly Federal Magistrates Court proceedings.  

The new jurisdiction of the Commission makes it easier for a complainant to make a complaint about bullying. The Commission must take steps to process a complaint within 14 days.  

• The types of orders the Commission could make; 

The Commission will ordinarily conduct a mediation or conciliation process, and attempt to achieve an outcome that the employee and employer are able to live with. The Commission will serve documents on both the the employer and the alleged bully (unless there are allegations of physical abuse or similar in which case the Commission will consider how the alleged bully is to be involved).  

Lawyers or paid industrial agents cannot represent any party without permission.

If mediation/conciliation fails to resolve the matter, the Commission will hear the application formally. It has wide powers to investigate employers in connection with existing policies and systems for dealing with alleged bullying.  

The Commission, however, cannot make ‘punitive’ orders. It may be that orders, as they will be made by the Commission in its new jurisdiction, will be focused on improving the relationship between worker and employer, for example, orders to meet or deal with other employees. Such orders will inevitably be intrusive and potentially subject the organisation to the Commission’s close scrutiny in its handling of employee complaints. 

• Ongoing ramifications once the Commission becomes involved;  

If your business is subject to a complaint under the bullying jurisdiction of the Fair Work Act 2009 (Cth), it may risk:  

• Media attention;  

• The inability to deal with the employee without the scrutiny of the Commission;  

• Being subject to Orders for the production of documents to the Commission and to update and/or implement business policies.

      –         Pro–active steps for protecting your business from complaints;

Some steps you may take to prevent adverse action are: 

1. Ensure you have a simple but effective company policy in place to deal with workplace bullying and harassment;
2. Get legal advice on your bullying policy, have a workplace lawyer draft it together with procedures for dealing properly with all allegations of bullying or similar kinds of complaints or concerns voiced by employees.  This is particularly important given the wider implications of Occupational Health and Safety laws in this area;
3. Get legal advice on how a bullying policy interacts with your other policies to ensure they do not conflict and are workable and practical;
4. As with all policies ensure the policy is widely known by employees.  
5. Embed the policy into all recruitment and induction processes (including having staff sign that they have read and understood all policies including the bullying and harassment policy);
6. Ensure the policy is located in prominent places in the workplace that are easy to locate – for example on your intranet with all other policies;
7. Critically, make sure the policy is strictly and carefully implemented every time a complaint is made. Don’t deviate from the policy unless you have had legal advice first;
8. Consider which senior level managers ought be delegated responsibility for each stage of a bullying and harassment process.  Ensure these people are trained properly in dealing with these issues as part of their wider management and leadership training
9. Ensure all aspects of a complaint are documented in writing, including confirming meeting minutes with signatures of both employees and employers;
10. Seek legal advice early when issues in the workplace arise that may lead to this kind of complaint.  Identify risk factors and signals for such issues, document them and train managers to identify them. This requires that managers be well trained and that you develop a culture where issues are identified early and there is open communication within and between all levels of management.

This article is general information and does not constitute legal advice.  If you would like to know more about the contents of this article, please contact Murray Thornhill at murray.thornhill@hhg.com.au or 08 9481 2322.