No cigar for anti-bullying doomsayers

by Cameron Edmond11 Feb 2014
In the lead up to the rollout of the Fair Work Amendment Act 2013 – providing the Fair Work Commission (FWC) the power to stop bullying at work – many feared the FWC would be bombarded with submissions that had little to no basis in truth, costing time and money for the FWC and employers wrongfully accused.

The first round of statistics regarding the amount of submissions has been revealed, and it doesn’t look like that has happened yet.

In January, 44 applications were received. Six were withdrawn, with 100% of matters commenced within the 14-day period, with many commenced the day they were lodged.
However, this number will not necessarily be indicative of future statistics, given the time of year and the newness of the laws.

"January and February traditionally see a smaller number of lodgements with the Commission, particularly in relation to other individual-based rights disputes such as unfair dismissals and general protections," FWC president Justice Iain Ross said. "The time of year and the fact that this is a new jurisdiction means that the number of applications received to date is not necessarily indicative of the lodgement trends we will see in future."

Ross added that the FWC expect “some fluctuation” in the amount of applications received.

Why there has been no flood
Carlo Caponecchia, senior lecturer at the school of aviation at UNSW wrote for The Conversation last month in regards to the new laws, and foresaw the scenario that is now unfolding. Caponecchia highlighted a number of reasons as to why there would not be a stampede of applications:
  • State government employees are not covered
    The whole workforce is not covered by these new provisions, as they do not apply to defence personnel and other state government employees, reducing the pool from which applications can come.
     
  • Damages are not awarded
    The FWC cannot award damages for bullying claims. Due to this, motivations to make claims (especially unfounded ones) are greatly reduced.
     
  • The very goal of the laws
    Without question, the laws exist to stop bullying from continuing in a workplace. As such, those who make complaints must be currently employed and want the bullying to stop. This has a heavy impact on the dynamics of the laws and making a submission.
What do you think of the findings? Is it still too early to tell?
 

COMMENTS

  • by Howard Whitton 11/02/2014 2:16:47 PM

    There is long experience in Australia showing that these sorts of reforms do not generate a 'floodgates' response. It takes time for people (including consultants who advise likely applicants) to understand the new system, to figure out whether it works well enough to be worth making a complaint, and to trust it. Early cases and decisions will be crucial. Come back in 6 months...

  • by Bernie Althofer 11/02/2014 3:29:52 PM

    I find myself agreeing with Carlo. In addition, I would suggest that people have been waiting to see whether or not they can take action under the new legislation and how difficult it would be for them physically, psychologically and financially.

    Based on inquiries made over the past few years, it would appear that some people believe that that economic climate and the ability to find another job has a direct impact on whether or not they report bullying behaviours, or even support others.

    It would also appear that because there is no dramatic increase or spike in reporting, some organisations may believe that bullying is on the decrease.

    It also seems that resolution options being offered up through various organisational policies encourage individuals to handle the matter themselves. In addition, risk assessments invariably fail to identify the actual workplace hazards that contribute to bullying incidents.

    In the main, there is probably a percentage of the workforce who really want the bullying to stop, but they are faced with the situation whereby taking action is physically, psychologically and financially draining.

    The outshot is that whilst people had great expectations and held high hopes that the new laws would provide a process whereby bullying could be stopped, the laws have created a number of barriers and limitations that only make the situation worse for some targets.

    It will be interesting to review the situation in six months time to see whether or not the laws are being accessed and whether or not any change is actually occurring.

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