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Revised anti-bullying provisions and the Fair Work Commission jurisdictions will commence on 1 January 2014.

While there is still some confusion about the likely impact, it is clear there will be a significant period of trial and error, with possible adaptation by the Commission of its procedures.  It must be noted however that significant resources were allocated to the Fair Work Commission (FWC) in the recent federal Budget to enable it to deal with bullying claims, with the tribunal reportedly expecting around 3,500 claims per year.

Preparing for the introduction of the anti-bullying jurisdiction is paramount, so here is a quick summary of the amendments:

  1. 1. For the first time a worker can seek redress for workplace bullying through specific legislation. The remedies that can be ordered by the FWC include requiring an individual or group to stop bullying behaviour or implement anti-bullying policies and training. Until now, Australian employees have been protected from workplace bullying primarily through federal, state and territory work health and safety laws. Anti-discrimination and workers’ compensation laws also provided some level of protection.
  2. Employers will be given notice of the complainant’s application before the Commission begins to deal with the complaint. This will be the case even when the application only names the offender and not the employer. The Commission will have to decide whether to serve the application on the offender at the beginning of the process. Depending on the nature of the bullying, the Commission may choose to wait until after it has commenced dealing with the application, before serving it on the offender. (This step is particularly important if there are serious bullying issues reported).
  3. If the matter is assigned to a member of the Commission, the member has the power to ask the parties to undertake mediation or conciliation rather than proceed straight to a hearing. This may reduce the chance that employers will find themselves in a hearing with limited time to prepare. When conducting a conference, the FWC may mediate, conciliate, make a recommendation or express an opinion.
  4. In general protections claims involving dismissal and unlawful termination claims, the dismissed employee will now have the option (where the FWC has been unable to settle the claim at a conference) of having the matter arbitrated by the FWC if the respondent to the claim agrees. That is, once the FWC issues a certificate that all reasonable attempts to resolve the claim have been unsuccessful, the applicant has 14 days in which to elect to:
      • pursue the general protections or unlawful termination claim in the Federal Circuit Court or Federal Court; or
      • enter into consent arbitration by the FWC (in which the tribunal will have powers to make the same kinds of orders as in the unfair dismissal jurisdiction, e.g. reinstatement, compensation; similar provisions relating to appeals and costs orders will also apply); or
      • elect not to proceed further with the claim.
  5. Unlawful termination claims – the time limit for bringing these claims has been aligned with that for unfair dismissal and general protections dismissal claims of 21 days.
  6.  The FWC’s operation is limited to the following types of employers (and their workers, including employees, contractors, trainees/apprentices, etc):
    • a person conducting a business or undertaking within the meaning of the Work Health and Safety Act 2011 (Cth), where:
      • the person is: a constitutional corporation; or the Commonwealth; or a Commonwealth authority; or a body incorporated in the ACT or NT; or
      • the business or undertaking is conducted principally in a Territory or Commonwealth place.

This means that workers engaged by the following types of employers will not  be able to bring an anti-bullying claim in the FWC:

  • unincorporated businesses such as sole traders and partnerships;
  • State public service departments and agencies, including in Victoria;
  • certain State government business enterprises and entities (unless they can be characterised as constitutional corporations).

The Commission has stated that it will not be promoting or recommending the resolution of these applications on the basis of monetary payments. This will not necessarily stop an applicant asking, however, a lack of encouragement about payment to settle will certainly minimise the risk that we will inherit a compensatory jurisdiction by stealth.

Any  mediation or conference in an anti-bullying complaint will be conducted in private. Unless an application is made for an anti-bullying hearing to be held in private, the hearing will be held in public.

Are you Ready?

To be ready in time, you have a responsibility to review your policies and procedures to ensure they are consistent with the new jurisdiction. Employee education is also essential, as is building and reinforcing a culture of ‘zero-tolerence’ and a robust and fair grievance handling process to deal with complaints.

You will find some of the details listed in this blog, and practical tips to assist you in understanding your discrimination, harassment and bullying obligations in WorkPro’s reviewed and updated e-book, which you can download here.

 

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