The new anti-bullying laws -

Fair Work Commission’s

experience

Commissioner Anna Lee Cribb

9 October 2014

Context

Changes in industrial relations:

- from collective to individual disputes

- unfair dismissal applications

- adverse action claims

- anti-bullying applications

© Commonwealth of Australia — Fair Work Commission 2

Genesis of new provisions

House Standing Committee on Education and

Employment report:

- right of legal recourse for workplace bullying

- foundation definitions

- ‘worker’

- what behaviour constitutes bullying

- exception to bullying (reasonable

management action)

© Commonwealth of Australia — Fair Work Commission 3

Outline

• Key features of the new laws

• Profile of the applications

• What is the process?

• Reflections on experiences so far

© Commonwealth of Australia — Fair Work Commission 4

Key features

What is bullying?

• A worker is bullied if:

• While at work in a constitutionally-covered business;

• an individual or group of individuals repeatedly behaves

unreasonably towards the worker or a group of workers; and

• the behaviour creates a risk to health and safety.

• Bullying does not include reasonable management action carried

out in a reasonable manner

© Commonwealth of Australia — Fair Work Commission 5

© Commonwealth of Australia — Fair Work Commission 6

Key features (ctd)

Who can apply?

• A worker who reasonably believes he or she has been bullied at

work

• Worker – as defined in WHS Act 2011 and means in effect:

• An individual who performs work in any capacity including as an

employee, a contractor, a subcontractor, an outworker, an

apprentice, trainee, student on work experience or a volunteer

© Commonwealth of Australia — Fair Work Commission 7

Key features (ctd)

What workplaces are covered?

Constitutionally-covered businesses

These are:

• a constitutional corporation (trading or financial);

• the Commonwealth or a Commonwealth authority

• the ADF is excluded

Key features (ctd)

What is bullying behaviour?

• ‘repeatedly’

- has to occur more than once

- recent Commission decision

• ‘behaves unreasonably’

- reasonable person test of ‘unreasonably’

© Commonwealth of Australia — Fair Work Commission 8

Key features (ctd)

Reasonable mgt action taken in reasonable

manner:

• for it not to be bullying:

- action must be management action

- must be reasonable for the mgt action to be taken

- mgt action must be carried out in a manner that is

reasonable

• range of mgt actions caught by exclusion is very wide

© Commonwealth of Australia — Fair Work Commission 9

Key features (ctd)

Creates a risk to health and safety:

- the possibility of danger to health and safety

- a causal link exists between the behaviour and the

risk

- behaviour may not be the only cause but is a

substantial cause of risk

© Commonwealth of Australia — Fair Work Commission 10

What is the process?

Process:

- triage

- preliminary conference/mediation

- purpose of preliminary conference

© Commonwealth of Australia — Fair Work Commission 11

What is the process (ctd)?

• Hearing/arbitration

- may make an order to stop bullying

- order is to prevent the worker from being bullied

- cannot include pecuniary amount

- must consider any known outcomes of WHS

investigation, internal grievance or other procedures

- Orders made (consent)

© Commonwealth of Australia — Fair Work Commission 12

© Commonwealth of Australia — Fair Work Commission 13

Profile of applications

1 January to 31 March 2014:

• 151 applications (133 employees, 3 labour hire employees, 1

apprentice, 1 volunteer)

• 32 applications withdrawn

• 23 resolved by mediation/conciliation

• 1 order (by consent) issued

Profile of applications (ctd)

• Bullying parties included:

- manager/supervisor (109)

- another employee (27)

- group of employees (20)

- subordinate (3)

• Profile of businesses

- 100+ employees - 67

- 50 -100 employees - 37

- less than 15 employees - 19 © Commonwealth of Australia — Fair Work Commission 14

Profile of applications (ctd)

• Types of industries

- Clerical - 23

- Retail - 13

- Health & Welfare - 11

- Banking, finance and insurance - 8

- Aged care & Manufacturing - 7

© Commonwealth of Australia — Fair Work Commission 15

Reflections

Experiences so far:

- industrial/ conciliation approach

- person named

- ongoing employment relationship

- unrepresented applicants

- is the behaviour complained about bullying

behaviour?

© Commonwealth of Australia — Fair Work Commission 16