Australia’s National Anti-Bullying Jurisdiction: Paper Tiger or Velvet Glove
Abstract
:1. Introduction
2. Antecedents to the Reform: Hearing the Voices of the Bullied and Other Stakeholders
3. Legislating a National Anti-Bullying Regime
The provisions are designed to complement, not replace, existing work health and safety obligations and the work done by work health and safety regulators. A person can make an application to both the Fair Work Commission and the relevant work health and safety regulator at the same time in keeping with the different process and outcomes available in each jurisdiction. The Fair Work Commission is working closely with work health and safety regulators on protocols to inform its handling of applications.([6], p. 29)
3.1. The Anti-Bullying Legislative Provisions
- (1)
- A worker who reasonably believes he or she has been bullied at work may apply to the FWC for an order under section 789FF (emphasis added).
- (2)
- For the purposes of this Part, worker has the same meaning as in the Work Health and Safety Act 2011, but does not include a member of the Defence Force.
- (1)
- A worker is bullied at work if:
- a)
- while the worker is at work in a constitutionally-covered business: (emphasis added)
- an individual; or
- a group of individuals;
- b)
- that behaviour creates a risk to health and safety (emphasis added).
- (2)
- To avoid doubt, subsection (1) does not apply to reasonable management action carried out in a reasonable manner (emphasis added).
- (3)
- If a person conducts a business or undertaking (within the meaning of the Work Health and Safety Act 2011) and either:
- a)
- the person is:
- a constitutional corporation; or
- the Commonwealth; or
- a Commonwealth authority; or
- a body corporate incorporated in a Territory; or
- b)
- the business or undertaking is conducted principally in a Territory or Commonwealth place.
- (1)
- If:
- a)
- a worker has made an application under section 789FC; and
- b)
- the FWC is satisfied that:
- the worker has been bullied at work by an individual or a group of individuals; and
- there is a risk that the worker will continue to be bullied at work by the individual or group;
- (2)
- In considering the terms of an order, the FWC must take into account:
- a)
- if the FWC is aware of any final or interim outcomes arising out of an investigation into the matter that is being, or has been, undertaken by another person or body—those outcomes;
- b)
- if the FWC is aware of any procedure available to the worker to resolve grievances or disputes—that procedure;
- c)
- if the FWC is aware of any final or interim outcomes arising out of any procedure available to the worker to resolve grievances or disputes—those outcomes; and
- d)
- any matters that the FWC considers relevant.
3.2. The Approach of the Fair Work Commission
We’re applying different concepts…because this is all about preventive maintenance of employment and personal relationships—it is not about picking up the pieces after the event. Seen in that context it’s a different skill set.([11], p. 73)
4. The Initial Impact of the New Regime: The Statistics
Period | 1/1–31/3/14 | 1/4–30/6/14 | 1/7–30/9/14 | 1/10–31/12/14 | 1/1–31/3/15 | Total |
---|---|---|---|---|---|---|
Number of applications for an order to stop bullying at work | 151 | 192 | 189 | 169 | 173 | 874 |
Finalized matters | ||||||
Applications withdrawn early in case management process a | 23 | 36 | 49 | 41 | 47 | 196 |
Applications withdrawn prior to proceedings (conference or hearing) b | 5 | 29 | 31 | 25 | 9 | 119 |
Applications withdrawn after a Conference or Hearing and before decision | 4 | 16 | 31 | 27 | 20 | 98 |
Applications resolved during the course of proceedings c | 16 | 47 | 48 | 43 | 46 | 200 |
Applications finalized by a decision d | 8 | 13 | 15 | 20 | 16 | 72 |
Total Matters Finalized in Period | 56 | 141 | 174 | 156 | 158 | 685 |
Decision details | ||||||
Jurisdictional objection upheld—application dismissed | 1 | 2 | 0 | 1 | 0 | 4 |
Application dismissed—bullying at work not found and/or no risk of bullying continuing | 0 | 4 | 0 | 3 | 2 | 9 |
Application dismissed: s.587 e | 6 | 7 | 15 | 16 | 14 | 58 |
Total applications dismissed | 7 | 13 | 15 | 20 | 16 | 71 |
Application granted—worker at risk of continued bullying at work, order issued | 1 | 0 | 0 | 0 | 0 | 1 |
Application granted—worker at risk of continued bullying at work, order yet to be issued | 0 | 0 | 0 | 0 | 0 | 0 |
Application granted—worker at risk of continued bullying at work, further decision and order issued | 0 | 0 | 0 | 0 | 0 | 0 |
Total applications granted | 1 | 0 | 0 | 0 | 0 | 1 |
Applications finalized by a decision Australia wide | 8 | 13 | 15 | 20 | 16 | 72 |
Total Matters Finalized in Period | 24 | 39 | 45 | 60 | 48 | 216 |
5. Early Trends: What the Published Anti-Bullying Decisions Tell Us
5.1. Methodology
5.2. The Question of Procedural Failings
- (1)
- Without limiting when FWC may dismiss an application, FWC may dismiss an application if:
- a)
- the application is not made in accordance with this Act; or
- b)
- the application is frivolous or vexatious; or
- c)
- the application has no reasonable prospects of success.
- (2)
- The FWC may dismiss an application:
- a)
- on its own initiative; or
- b)
- on application.
5.3. The Question of Stalling Tactics
5.4. Question of Frivolous or Vexatious Applicants?
From all evidence supplied to you by us it would be evident that we are not the guilty party but have been held to blackmail because we refused to reinstate Mr. Hill when he resigned & caused a significant disturbance within this business. We realize that the Bullying Legislation is very new & while we support its introduction & the management of the law by yourselves it would appear that there must be some “filtering” or mechanism whereby innocent parties can be protected from those who wish to abuse the system & use it to their improper advantage. Interestingly Mrs Hill states in her email of yesterday that her husband is a bankrupt therefore he had nothing to lose with this entire process but everything to gain including causing us additional work, expense & emotional pressure.We look forward to hearing from you & bankrupt or not, should you wish to conclude this matter against Mr. Hill then we would appreciate for the record costs being awarded against him.([16], para. 20)
5.5. Question of Bullying Conduct Prior to 1 January 2014
5.6. Question of a Constitutional or Trading Corporation?
5.7. Question of What Behaviours will Be Considered as “Bullying” or “Unreasonable”?
5.8. Order(s) and Recommendations
6. Conclusions
Since our last meeting there has been a negligible amount of conflict between A and myself, and I have felt comfortable approaching my supervisor, B, with any concerns that I have. The past year of intervention from Fair Work has been very positive and helpful and I am very grateful for the support that has been given to me by Senior Deputy President Drake.I think that the New Year is an appropriate time to lift the orders and that it is in the best interest of everyone involved to do so.[37]
Supplementary Materials
Author Contributions
Conflicts of Interest
References and Notes
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- Ms SB [2014] FWC 2104, para. 39.
- Sharon Bowker; Annette Coombe; Stephens Zwarts v DP World Melbourne Limited T/A DP World; Maritime Union of Australia, The Victorian Branch and Others (AB 2014/1260; AB2104/1261; AB2014/1266) [2014] FWCFB 9227 at [11].
- Fair Work Commission. “Fair Work Commission Annual Report 2013–2014. ” Available online: https://www.fwc.gov.au/about-us/news-and-events/annual-report-2013-14-published (accessed on 12 December 2015).
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- Fair Work Commission. “Fair Work Commission Annual Report. 2014–2015. ” Available online: https://www.fwc.gov.au/documents/documents/annual_reports/fwc-ar-2015-web.pdf (accessed on 12 December 2015).
- Fair Work Commission Website. “The relevant FWC search function. ” Available online: http://decisions.fwc.gov.au/ (accessed on 12 December 2015).
- Paul Hill v LE Stewart Investments Pty Ltd T/A Southern Highlands Taxis and Coaches; Laurie Stewart; Robert Carnachan; Nick Matinca [2014] FWC 5588 at paras. 4–15 and Paul Hill v LE Stewart Investments Pty Ltd T/A Southern Highlands Taxis and Coaches; Laurie Stewart; Robert Carnachan; Nick Matinca [2014] FWC 4666. In this case the award was essentially for ‘witness fees’ for two of the respondents to attend the hearing in Wollongong and was to be paid to the third respondent, the employer, paras. 12–20.
- YH v Centre and Others [2014] FWC 8095, at paras. 11, 62.
- McInnes [2014] FWC 1395.
- Irina Kolodizner, and Justin Le Blond. “Spotlight on bullying.” 9 April 2014. Available online: http://www.hwlebsworth.com.au/latest-news-a-publications/publications/workplace-relations-and-safety/item/1285-spotlight_on_bullying.html (accessed on 12 December 2015).
- YH v Centre and Others [2014] FWC 6128 at para. 8.
- Newcastle Wallsend Coal Co Pty Ltd v Workcover Authority (NSW) (Inspector Martin) [2006] NSWIR Comm 339; 159 IR 121 at [301].
- Thiess Pty Ltd v industrial Court of New South Wales [2010] NSWCA 252, 78 NSWLR 94 at paras. 65–67.
- Georges v Telstra Corporation Limited [2009] AATA 731 at para. 23.
- Applicant v General Manager and Company C [2014] FWC 3940.
- Mac [2015] FWC774.
- Mrs Rachael Roberts v VIEW Launceston Pty Ltd as trustee for the VIEW Launceston Unit Trust T/A View Launceston; Ms Lisa Bird; Mr James Bird [2015] FWC 6556.
- Applicant v Respondent (AB2014/1052) PR548852.
- In the case of Arnold Balthazaar v Department of Human Services (Cth) [2014] FWC 2076 at para. 25 and 28 it was held that the applicant, who received a social security payment to assist him to care for his mentally-ill daughter, was not a "worker" (employee, independent contractor or volunteer) for relevant purposes. Therefore, his application was not valid and could not ground the FWC’s jurisdiction under the anti-bullying provisions of the FW Act at para. 25 and 28.
- See for example, Mirceau Stancu [2015] FWC 1999. Mr. Stancu was a voluntary sanitation engineer engaged by Australian Volunteers International to work for the Ministry of Public Works and Utilities in Kiribati. The applicant was found to not work for a "constitutional corporation" (para. 34) and while working as a volunteer overseas was beyond the reach of the FW Act in its entirety (para. 44).
- See for example, Mr. Richard Bassanese [2015] FWC 3515, where the applicant was terminated before he made the anti-bullying application; and Shaw v ANZ [2014] FWC 3408.
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- Applicant [2014] FWC 9184. On 16 December 2014 the FWC, in response to the Applicant’s submission, revoked its orders of 10 September 2014.
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Ballard, A.; Easteal, P. Australia’s National Anti-Bullying Jurisdiction: Paper Tiger or Velvet Glove. Laws 2016, 5, 4. https://doi.org/10.3390/laws5010004
Ballard A, Easteal P. Australia’s National Anti-Bullying Jurisdiction: Paper Tiger or Velvet Glove. Laws. 2016; 5(1):4. https://doi.org/10.3390/laws5010004
Chicago/Turabian StyleBallard, Allison, and Patricia Easteal. 2016. "Australia’s National Anti-Bullying Jurisdiction: Paper Tiger or Velvet Glove" Laws 5, no. 1: 4. https://doi.org/10.3390/laws5010004