Anti-bullying series 5 – Costs & appeals arising from Fair Work Commission anti-bullying measures

The fifth in our series of online training sessions briefing HR professionals and managers about the upcoming Anti-Bullying Measures to be introduced on January 1 under changes to the Fair Work Act. In this session, we explore potential costs and appeals arising from the Fair Work Commission anti-bullying measures.

0:18 – Cost of Bullying to Businesses

0:53 – Cost  Associated with FWA

2:45 – Once Internal Dealings now….

6:12 – Minimum Costs = Early Intervention

7:20 – Allegations of Bullying Arise:

9:15 – Allegations of Bullying Arise:

10:46 – Minimum Costs = Early Intervention

11:43 – Minimum Costs =Early Intervention

13:09 – Investigation Costs

14:27 – F72 – Response Form

15:45 – Costs: Legal Representation

16:28 – The Role of the FWC:

18:08 – Costs

19:26 – Applying for Costs

20:01 – Costs will only be awarded

20:36 – Vexatious

20:55 – Without reasonable cause

21:06 – Without reasonable cause

21:49 – Appeals

22:42 – Appeals

Video Transcript

Welcome to our fifth session in this six part webinar series where we discuss the new anti-bullying measures in the Fair Work Act. This session will be focusing on the costs involved in responding to an F72 application and the appeals process.

0:18 – Cost of Bullying to Businesses

We’re already aware that the cost of bullying to Australian businesses has been estimated to be between $6 billion and $13 billion per year in direct and indirect costs. This is a significant cost to Australian businesses who are already trying to work with the effects of bullying and to minimise the effects of bullying. We know that businesses have a significant contribution in terms of costs to cover off on this area. Now we are going to see another layer of costs applied to working with bullying and reducing bullying in the workplace.

0:53 – Cost Associated with FWA

These costs are coming from the fact that the Fair Work Act now has a provision in it for anti-bullying measures and there are processes involved with the Fair Work Commission, with the application of a stop bullying order and the responses to that application. Organisations are now going to have to put more focus and more costs in preventing bullying, in conducting investigations thoroughly and promptly, in doing all the preliminary work, to gather evidence and materials if an F72 application is made by one of their workers or the respondent is one of their workers.

The costs of filling in an F73 form because I’m going to suggest that it would be well worth the investment to have a legal representative or paid agent to fill in that F73 form and submit that for the organisation, there’s going to be costs involve in attending mediation, a conference, or hearing. We do know that if you are called to attend the mediation you may have a legal representative in the mediation because the mediation will be conducted by Fair Work Commission employee and there’s nothing in the Fair Work Act to prevent you from having a legal representative in that mediation. However, the Fair Work Act does have a provision in it which requires you to apply, to have permission to have a legal representative in a conference or hearing being conducted by a Fair Work Commission member.

There’ll also be costs involve in perhaps meeting the requirements of a stop bullying order that might be handed down by the Fair Work Commission and then the Fair Work Commission also has the powers to award costs as well.

2:45 – Once Internal Dealings now….

What once used to be considered really an internal work matter, allegations of bullying, and dealing with the consequences of bullying, it has for many years potentially been a civil and criminal matter. However, essentially it’s been handled as an internal work matter. While now as of the 1st of January, the potential for this matter to be addressed in civil and criminal prosecutions has just escalated exponentially.

The Fair Work Commission believed that there will only be a very small number of genuine complaints where the worker who is still employed or engaged who want to take adversarial action to solve the bullying issue. I agree with them that there will only be a very small number of genuine complaints. However, I disagree with their perspective that they may only have 3,500 complaints in a year. I think they are going to have a very high proportion of non-genuine complaints of bullying that are going to have to be worked through and that will be just as costly as the small number of genuine complaints that are going to have to be addressed. There’s going to be a lot of time, effort, and money involved in addressing all of these F72 stop bullying applications that the Fair Work Commission will receive and if it’s one of your workers who has put in that application or one of your workers who is the respondent then you do have costs, time, and money, costs involve in responding.

We are also aware that submitting an F72 application is a protected workplace right and I think that there will be a number of workers, hopefully only a small number of workers who will exploit this, that submitting an F72 at protected workplace right to be able to put in an adverse action claim at some later stage.

Not only are we going to see perhaps genuine complains being made to the Fair Work Commission but I think we are going to see a high number of non-genuine complaints where there will be allegations of bullying that are not substantiated whether an employee or worker believes that they are being bullied or whether they are just using that avenue as a means of doing something to the protective workplace right to protect them from adverse action later on.

I don’t think the Fair Work Commission is going to have the resources to deal with the influx of applications they are going to receive. I do believe they are going to involve the State Work Health Safety Regulator and that will automatically mean that a new layer of complexity will be added to this process and the Fair Work Commission has indicated that if they get to the stage where a stop bullying order looks as though it might have to be made or they’re considering that. They will speak to the Work Health Safety Regulator to see what provision they put in place first before the Fair Work Commission look to layer something over the top of that or perhaps not put something over the top of that. The Work Health Safety Regulator will be involved and that means of course that they’re interested in any breaches of the Work Health Safety Act or OHS Act and of course those breaches are criminal matters. This is going to open up many avenues for an employer or a worker a PCBU to be concerned about.

6:12 – Minimum Costs = Early Intervention

To minimise costs, I think that organisations are going to have to really put more focus on early intervention. Obviously the aim is to have a safe and productive workplace and on top of that we now have a name not to have to submit an F73 form. When you look at the F73 form there are number of questions that are asked that really are going to put the spotlight on an organisation and whether they have a fully functioning and productive and effective system of team leaders, supervisors, managers, all doing the right thing.

I don’t think an organisation is going to want to have to answer any of these questions showing that they have not addressed situations as they should have. That’s not going to be a good place to put your organisation.

We are seeing allegations of bullying arising in the workplace and I think we’ll see allegations of bullying arise through an F72 application because workers do not fully understand the term bullying.

7:20 – Allegations of Bullying Arise:

I think we need to do more than just give them the definition or the concept of what bullying is – The repeated unreasonable behaviour etc.. We actually need to give examples of behaviours that most likely would be considered bullying and the inappropriate behaviours that are not bullying. They are inappropriate but they are not bullying.

I find that when I deliver this training to organisations and staff understand the term bullying and understand the behaviours that might or might not be bullying, they’re less likely to put in an allegation of bullying because they are much more aware of what they are talking about. Usually we get allegations of bullying arising that aren’t substantiated because workers feel aggrieved and the only label they have for that is bullying and so then they believe they have to put in a complaint of bullying. If we could come up with another term that could identify with how a worker is feeling but not call it bullying. I think that’s going to help us greatly to minimise allegations of bullying arising. Allegations of bullying are made because we have actual bullying happening or we have inappropriate actions that ain’t bullying that have stemmed from perhaps escalation of interpersonal conflict, a lack of rapport between manager and staff. Sometimes a manager who’s busy, who’s got a lot pressures on them might make an off-the-cuff comment that might be seen as bullying. They may have an aggressive or abrupt management style. Very often when an organisation or a manager has unclear expectations of that staff member and then they actually make their expectations known that creates a situation where staff members or workers can feel bullied. When management make decisions that appear to be non-transparent or bias, workers are more likely to feel they’ve been.

9:15 – Allegations of Bullying Arise:

Essentially, I see allegations of bullying being put forward because managers are not having enough or even staff, or workers, between worker and worker, or between manager and worker, there is a lack of detailed conversation going on. When we have a lack of detailed conversations we have void, we have a misunderstanding, and we have a situation that a worker is wanting to understand and so they will overlay that with a negative assumption to help fill in that void and to help them try to understand that situation. As soon as they put a negative overlay on that conversation, that situation, we then have the potential for repeated situations to occur where they put a negative overlay on that situation and it won’t be long before that worker is feeling bullied because they are feeling aggrieved with all this negativity that they perceived is going on around them. We allow that negativity to go on because we don’t have enough challenging conversations. We allow the worker to continue within and grow in their negative perceptions and embed their negative views rather than having a conversation validates perhaps how they are feeling and why they might feel that way, but then it looks to expand their perspective and provide more information and challenges that negative perception to see that perhaps is a more reasonable and objective situation going on here and they may not have thought about the other perspective that’s available to them.

10:46 – Minimum Costs = Early Intervention

I think another way we can minimise costs through early intervention is to make sure that team leaders and supervisors are more aware of what is happening in their teams and that they are quick to notice anyone who is feeling aggrieved, who is making comments, who’s gossiping, or just through their body language, and that they deal with that and address that immediately so that we don’t have that opportunity for interpersonal conflict to escalate. The team leaders and supervisors should have these skills, very often they don’t. If we can’t train them up quickly enough or satisfactorily enough to have these skills then they at least need to be escalating the issue to the next line manager who does have these skills to be able address the situations promptly, resolve them effectively and of course document the process that’s been going on because we never know if there are workers are going to make an F72 application so you are going to have to want these process documented.

11:43 – Minimum Costs =Early Intervention

Another way that you can minimise costs through early intervention is to do formal investigations. Most organisations will not do a formal investigation until they have a formal written complaint of bullying and I am suggesting to you that you do not need to have a formal written complaint before you investigate. Any allegations of bullying should be reported up line and should be investigated. Please train your team leaders, supervisors, managers, to be listening out for these comments and to not dismiss them but to actually report them so that they can be investigated. Of course, any investigations undertaken must be professional and thorough and resolve in a detailed report because again, they could be used as future evidence if you are required to present that to the Fair Work Commission. When organisations actually address allegations of bullying promptly and thoroughly the word spreads quickly in an organisation and workers know that they can’t make off the hand comments about being bullied because it will be investigated.

If a worker is being bullied, of course, they should be putting in a formal complaint and having it investigated. But a lot of aggrieved workers will be very comfortable with making off the cuff comments themselves about how they are feeling bullied because they believe that nothing will be done about it so doing something about it will minimise the amounts of unsubstantiated allegations of bullying that are arising in your workplace.

13:09 – Investigation Costs

Doing an investigation comes with costs as well, whether it’s done internally or you bring in an external consultant, and it will be worth weighing up when you do an investigation internally or bringing in an external consultant because of the time taken. The need for impartiality and the need to have an investigation done promptly and thoroughly and what sort of level technical competencies available within the organisation and what you need to bring in. I think it’s also important that you do an investigation because if the complaint is escalated to the Fair Work Commission you need to have your documentary evidence of what you have done to address the situation. You also need to have your evidence of what you have done to prevent the bullying from happening again. Remember that the Fair Work Commission must take into account any processes or procedures available and used at work and they must take that into account when they’re determining, “Well, is there a risk that the bullying will continue? “You need to do everything you can do before you get to that stage in the Fair Work Commission hearing so that the Fair Work Commission doesn’t have to impose orders. You have already taken steps to minimise the risks of bullying occurring again in your workplace, if the allegations of bullying were of substance in the first place.

14:27 – F72 – Response Form

There is also another layer of costs here that if an F72 application is made by one of your workers or you have a worker who is a respondent you are going to have to fill in an F73 response form and I’m suggesting that organisations have a legal representative fill this out. There will be costs associated with that. There will be costs associated with the legal representative becoming familiar with the matter and I’m suggesting that you have a legal representative fill this out because you don’t want to incriminate the organisation or anyone personally in the organisation in how you fill that out in what information you provide.

You’re also wanting the Fair Work Commission, if you believe the allegations are substantiated you’re wanting the Fair Work Commission to dismiss that F72 application at the earliest time possible and they can only do that on these three grounds: Jurisdictional grounds, the applications being frivolous or vexatious, or the Fair Work Commission believing that the application has no reasonable prospect of success. If you have a legal representative working with you it would be their job to try to put forward sufficient quality and weighted evidence to help the Fair Work Commission reached that decision early and dismiss an F72 application earlier, to minimise the time and money that you’ll be spending on addressing this situation.

15:45 – Costs: Legal Representation

There’ll be legal costs involved through your legal representative because the Fair Work Commission can require further information in trying to determine has bullying happened or not and so there could be the requirement to provide further evidence written or oral submissions. There’ll maybe the requirement to attend meditation or a private conference or formal hearing. Your legal representative may not be able to attend the conference or hearing with you but you will certainly be wanting them to help you prepare to attend the conference or the hearing. There’ll be costs associated throughout this whole process in dealing with the Fair Work Commission.

16:28 – The Role of the FWC:

Remember that the role of the Fair Work Commission is to determine three things: Has a valid application being made? Has the worker been bullied? Is there a risk that the worker will continue to be bullied? Once those determinations have been made they then have to determine what actions are going to be required to stop the bullying. If you have already put actions in place to stop the bullying then the Fair Work Commission doesn’t have to make or most likely will not make a stop bullying order. If the Work Health Safety Regulator has already put a probation, has already put orders in place then the Fair Work Commission won’t make an order or is less likely to make an order. If you can already prove to the Fair Work Commission because one or more parties has left employment or engagement or you have put things in place already that will stop the bullying, for example changing rosters, changing shifts, changing geographical location, putting people through counselling or training, etc, then the Fair Work Commission will have no need to actually go through the process of working out if the worker has been bullied because their main aim is to ensure that the worker will not continue to be bullied. If you’ve already determined that for them and put procedures in place already then the Fair Work Commission is going to be able to dismiss the application early because there is no need for them to follow through with that course of action. You can actually make your interaction with the Fair Work Commission as short as possible by doing as much as possible early as possible, and that will minimise the costs involved in dealing with the situation.

18:08 – Costs

I’m suggesting that any costs for legal representations will be well worth that investment because not only are you wanting to minimise the time and money you spend in dealing with the Fair Work Commission but it’s not clear yet what are the steps a worker might take flowing on from this application to the Fair Work Commission. Will they use the outcome from that to put forward a worker’s compensation case? Will there be fines or orders coming from the Work Health Safety Regulator? Will a worker be looking for common law damages toward the negligence associated with any outcomes from the Fair work Commission as well? You’ve got to think of the greater consequences about this process. I think putting a lot of money into preventing bullying and allegations of bullying arising in the first place is a main priority and then having legal representation, investing in legal representation is going to be well worth the money as well.

Generally parties have to pay their own legal costs in matters before the Fair Work Commission. However, the Fair Work Commission does have powers to order one party to pay other party legal costs.

19:26 – Applying for Costs

You do need to be aware of that, that application for costs has to be made within 14 days of the Fair Work Commission finishing dealing with the matter and the Fair Work Commission needs to follow a schedule of costs found in the Fair Work Regulations, schedule 3.1. They can use this as guidance, they can award rates above that schedule and they use it as a guide only. However, they do have the power to award costs and I supposed an organisation doesn’t want to be in a position where they have to pay the costs for the worker who has put in the F72 application.

20:01 – Costs will only be awarded

The Fair Work Commissions can only order payment of another parties cost if they are satisfied, if the application or the response was vexatious or without reasonable cause. You do need to be careful that your F73, that is submitted does not appear to be vexatious or without reasonable costs and another reason that the Fair Work Commission can order payment of costs is if the applicant or the respondent has put in an application or response that had no reasonable prospect to success and was made without reasonable cause.

20:36 – Vexatious

The draft bench book put out by the Fair Work Commission defines vexatious as an application or response that was submitted to harass, annoy, or embarrass another party, or had another purpose other than settling the matter at this moment.

20:55 – Without reasonable cause

It defines without reasonable cause as something that is so obviously unattainable that it cannot possibly succeed is manifestly groundless, etc…

21:06 – Without reasonable cause

The Fair Work Commission has cautioned that they will exercise extreme caution in their test of manifestly attainable or groundless and so the ability to ask for costs be awarded is probably going to be very low. I think they are going to set a very high benchmark there because they have said they will use the test of manifestly attainable or groundless. However, it’s suitable for an organisation to know that they could be required to pay the costs of the other party through the process of having to address an F72 application in the Fair Work.

21:49 – Appeals

There is a provision there for appeals to be made, however you have to apply for permission to make an appeal and can only put in that appeal once that permission has been granted. The Fair Work Commission has indicated that again it’s a very high bar here to meet for an appeal to be granted permission, and the Fair Work Commission will only grant permission for appeal, way to do so is in the public interest. If an order is made that an organisation doesn’t like, that they don’t really want to look, to implement, that is not going to be enough of the reason to put in an appeal and have that granted, for the appeal to be heard.

These are the grounds on which an appeal will be granted: The Fair Work Commission has indicated that, there has to be a legitimate reason for the appeal and the full bench will only exercise their powers to grant an appeal if it identifies some error on the part of the primary decision maker.

22:42 – Appeals

There needs to be enough reason for an appeal in terms of not just being in the individual organisations interests but in the community interest and that they perceived they could possibly be some error on the part of the primary decision maker. They back it against upon a wrong principle. They’ve been guided by relevant factors, being mistaken of the facts, or foul to take some material considerations into account. The main areas of error that Tthe Fair Work Commission full bench will look at is the tribunal jurisdiction, have they made the decision that they don’t have the power or had they done something that they don’t have the power to do? Has there been an error of law or has there been an error in looking at the facts?

As you can see this is going to be a lot of costs involve in responding to an F72 application. There could be further costs that could arise from the outcomes of the Fair Work Commissions decisions around an F72 application. The costs involved will be significant and the ability to appeal will be minimal assuming from what we’ve been told by the Fair Work Commission. It is going to be important that an organisation puts a lot of thoughts into this matter and perhaps puts some resources into. I would suggest preventing bullying and allegations of bullying arising in the workplace rather than looking to spend a lot of money in a reactive sense that only benefits the organisation, rather than putting money in a preventative sense that will benefit a lot workers as well as the organisation.

 

About the Author

Catherine Gillespie brings a wealth of skill to her clients. With particular expertise in teaching communication and workplace conflict resolution skills, Catherine has made a marked difference to the organisations she has worked with. She empowers teams and managers to adopt constructive styles that support harmony, productivity and progress in the workplace.

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