The provisions for Anti-Bullying Measures in the Fair Work Act come into force from 1 January 2014.
Legislation will provide a pathway for workers who reasonably believe they are being bullied at work to make an application to the Fair Work Commission (FWC) for a ‘stop bullying order’.
There are no barriers for a worker to make this application – other than they must have reasonable belief they are being bullied at work. A worker does not need to submit a complaint at work, verbally tell their employer they are being bullied or first seek resolution from an outside authority. (Regulations may/may not be made that a fee is to be paid with each application.)
There is no provision in the legislation that a worker must tell their employer they have made an application to the FWC.
The FWC will have 14 days to start to deal with an application – which could just mean that they must start to inform themselves of the matter. With belief that the FWC will have limited resources to deal with this extra workload, fears are that timeframes for resolution will blow out.
As a result of a ‘stop bullying’ application, an employer may have to attend a conference, a hearing or be investigated by a regulator (such as Worksafe, Workcover etc). A hearing is a legal proceeding (in which the matter is seen as a civil case) and is usually public. An investigation by a regulator could result in PIN notices, enforceable undertakings or criminal prosecution.
The FWC must take into account any final or interim outcomes from any internal investigation and any internal procedures an organisation has for dealing with grievances/dispute resolution.
If the FWC is satisfied that the worker has been bullied and that the bullying behaviour is likely to continue a stop bullying order can be made. If these orders are contravened by the perpetrator or the organisation, fines can be imposed.
Whether the FWC finds a bullying complaint to be substantiated or not, the time and money taken to get to this point will be extraordinary compared with a worker raising a complaint internally.
Workplace Conflict Resolution believes this process will result in a deterioration of trust and workplace relationships and confusion and conflict if the FWC makes a stop bullying order but an internal investigation makes a finding that bullying did not occur.
Having a worker make an application to the FWC is not a space that organisations will want to find themselves in.
Workplace Conflict Resolution is offering ‘Anti-Bullying Measures’ presentations and training to organisations who want to know more about these provisions, the implications for businesses and how situations of interpersonal conflict and informal verbal complaints of bullying can be more effectively managed in house so that a worker does not feel they have to make an application to the FWC to get any satisfaction.
Workplace Conflict Resolution also suggests that in house policies and investigation practices are reviewed and updated and offers professional grievance investigation services that can be confidently used as evidence in any FWC conference or hearing.
To find out if your business is suitably prepared for the incoming measures contact us now.