Opinion: Expected flood turns into a trickle - the new bullying regime

Martin Alden outlines where the anti-bullying stance taken by the Fair Work Commission stands almost two years after it was introduced.

Opinion: Expected flood turns into a trickle - the new bullying regime
Martin Alden outlines where the anti-bullying stance taken by the Fair Work Commission stands almost two years after it was introduced.

On 1 January 2014, the new anti-bullying regime was introduced at the Fair Work Commission (FWC) which for the first time gives workers the specific right to bring a claim against their employer for bullying. Up until then, no legislation existed in Australia which specifically prohibited workplace bullying. Prior 1 January 2014, any claims for workplace bullying generally had to be addressed under the broader provisions of the applicable occupational health and safety legislation, workers compensation legislation, anti-discrimination legislation, and, in very serious cases, the criminal law.

Expectation vs Reality
Prior to the introduction of the new anti-bullying regime, the General Manager of the FWC informed the Senate Education, Employment and Workplace Relations Committee that the Commission was expecting to receive approximately 3,500 bullying claims per year under the new regime. The General Manager conceded that this figure had been arrived at based on “informed speculation” in light of the findings of the Productivity Commission’s earlier inquiry into workplace bullying.

However, according to reports issued by the FWC, a total of only 874 anti-bullying applications were received by the FWC from the date of the introduction of the new regime on 1 January 2014 until 31 March 2015. Of these applications, only 72 (or less than 10%) were finalised by a decision, and in all but 1 of these cases the application was dismissed. That is, only 1 of the 874 anti-bullying applications made to the FWC during this period was actually granted.

The relatively low number of bullying applications made to the FWC is notwithstanding that the FWC’s website received a total of over 185,000 unique hits about bullying and that the FWC received a total of almost 7,000 telephone inquiries in relation to bullying in 2014.

What does this mean for employers?
The risk to employers of being subject to a bullying claim in the FWC is clearly lower than originally anticipated. We believe one of the key reasons for this is because the new bullying regime is a non-compensation jurisdiction. That is, if a bullying claim is successful, the FWC does not have power to award compensation to the victim of the bullying. Rather, the FWC may make any other order it considers appropriate to prevent the worker from being bullied at work, such as an order for the bullying to stop, counselling, or the introduction of suitable workplace policies.

Another likely impediment is that the FWC may only make an order if the worker has not only been bullied at work, but there is a risk that the worker will continue to be bullied at work. There is no risk of bullying continuing at work if the employment has ended.

However, this does not mean that employers should ignore workplace bullying. On the contrary, the high number of unique hits on FWC’s website and the telephone inquiries received by the FWC in 2014 indicate that bullying is a matter of significant interest to workers.

Further, the cost of workplace bullying can still be significant for employers even in the absence of a claim. The report by the Productivity Commission referred to above estimated that the total cost to Australian businesses from workplace bullying ranged from $6 billion to $36 billion each year. This includes the cost of staff absenteeism, low employee morale and productivity, high staff turnover, adverse publicity and legal costs.

As a minimum, employers should have a suitable written anti-bullying policy in place and ensure that managers and employees understand their obligations and are properly trained in relation to that policy. To be effective, the anti-bullying policy should set out, amongst other things, the legal definition of bullying, identify the source of the legal obligation, make it clear that bullying will not be tolerated, and prescribe an appropriate complaints resolution procedure.

About the author
Martin Alden is the Head of Employment & Industrial Relations at Cornwall Stodart, a Melbourne based full service commercial law firm. Martin has significant experience practising in all aspects of employment and industrial relations law. He has worked for a broad range of clients in both the private and public sector, including employers in the manufacturing, retail, financial, emergency services, information technology, security, medical, pharmaceutical and printing industries.

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