by Jennifer Wilkins, Founder of Know Bull!
I have to admit—I was slightly amused watching rumours circulating among business leaders, and advisors; lawyers; and HR and industrial relations 'specialists'—prior to the introduction of the Fair Work Commission's (FWC) 'anti-
The New Year arrived, the laws came into place...and January came and went. So did February...and March as well. And did the ground beneath us shake from the thundering of a thousand feet beating a path to the FWC's doors? Ummm..."No". Did we hear the tumultuous voices of the aggrieved masses declaring in unison to be heard...asserting the right to bully-
Where would we be without ill-
Anyway, another 'gift' came along this week in the shape of an article by a few HR bods who wanted to have a bit of a 'spit' about the FWC's new anti-
Let's cut to the chase
The FWC's anti-
Further, the new anti-
There's an organisation where a workplace bully has been active for a couple of years. A number of staff have been treated badly...some have become ill...some may have even left. Then one 'target' decides enough is enough. They've asked HR to assist them in resolving the bullying, but their request falls on deaf ears—and the HR staff sides with the bully—their golf buddy. There's an anti-
Enter the FWC. Based on the above scenario...What can you expect?
Firstly, the anti-
For the sake of the scenario, we'll say the organisation does fall under the anti-
From the FWC's point of view there's a few things they need to establish before hearing any workplace bullying claim:
1. The applicant reasonably believes they've been bullied at work
2. That the worker was bullied at work by an individual or group, and
3. There's a risk the bullying will continue
Once the FWC is satisfied the above has been established, they'll make any orders deemed necessary to prevent the worker being subjected to further workplace bullying. Also note that the amendments to the Fair Work Act 2009 (Cth), now includes a definition of 'workplace bullying' [See Fair Work Act s.789FD(1)]:
Workplace bullying occurs when:
• an individual or group of individuals repeatedly behaves unreasonably towards a worker or a group of workers at work,
• the behaviour creates a risk to health and safety.
The key words are bolded in the FWC Benchbook, so we'll take a brief look at those. Repeatedly: workplace bullying consists of repeated behaviours, and is generally not a one-
Based on the scenario, what kinds of orders could be made? (remember—this is only speculative). While the order 'to stop' bullying will be made, other possible orders might include:
1. Either the 'bully' or 'target' be moved to a separate work site (if another site exists)
2. They could be moved to opposing shifts (if shiftwork, or rotational roster is available)
3. If neither of these options are available—they could be moved further apart (physically) in the workplace
4. The 'bully' may receive an order to refrain from certain behaviours such as emailing, confronting, or admonishing the 'target', and that requests to the 'target' be made via a senior manager, or some other third party
5. The organisation may be required to bring their policies up to date, and to promote them among staff, and train senior managers
6. The 'bully' may be required to attend various 'workshops' or training such as 'Being a Better Manager 101'
7. The organisation will have a certain amount of time to comply, and could also be monitored for compliance.
Key Points (a.k.a. addressing some of the propaganda):
The goal of this legislation (once workplace bullying is found to exist)— is to prevent it from re-
The legislation is not about extracting some amount of financial payment from the bully or the organisation. The only time 'money' will enter into the equation is if the orders are breached (not complied with). An organisation or individual could then be prosecuted and incur penalties— up to $51,000 for corporations, and $10,200 for individuals
The legislation is not about adding financial burden, or meddling in organisations rights to determine workers' hours or rosters. If two workers need to be separated to prevent workplace bullying re-
If the organisation doesn't have additional sites— some other arrangement will be worked out, and this will be achieved through consultation and agreement between the parties.
The Commission will not place an unworkable, or highly prohibitive order on an individual or organisation. Orders need to be workable and acceptable in order to achieve the goal: to prevent workplace bullying from re-
And in the event thngs don't go as swimmingly as the organisation desires— they can have the matter relisted with the Commission for further conference.
Note there is no requirement that the target of the workplace bullying be suffering an 'injury' in order to have an anti-
As the current legislation stands, workers can approach the FWC without notifying their organisation, and the FWC will deal with matters in 14 days. However, the Abbott government is proposing changes to the jursdiction with the requirement of the bullying claim going to a gatekeeper first— before going to FWC. Possible gatekeepers would be the relevant WHS regulator in your State or Territory. So you need to keep an eye out for these potential changes.
Finally, some (propagandists) say the 14-
In conclusion, as far as where Know Bull! stands with regard to the anti-
[13 April 2014]