The anti-bullying jurisdiction, which commenced on 1 January 2014, allows someone who believes they have been bullied at work to apply to the Commission for an order to stop the bullying.
To be eligible the worker must be in a constitutionally-covered business and the actions must meet the definition of bullying in the Fair Work Act 2009, which states a worker is bullied if:
“…an individual or a group of individuals repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member, and that behaviour creates a risk to health and safety”.
The Commission is empowered to make any order it considers appropriate to prevent a worker being bullied, other than ordering payment of a pecuniary amount.
The first six months
In the first six months of the jurisdiction the Commission:
- received more than 100 000 unique website hits regarding anti-bullying
- dealt with more than 3500 telephone inquiries, and
- processed 343 applications.
The Commission must start dealing with an application within 14 days of lodgment. Matters are considered dealt with when the anti-bullying case management team, acting under delegation from the President, commences making inquiries for the purposes of gathering information for the Panel Head to assess how a matter should be progressed through the Commission; for example, whether the matter is dealt with by a Commission Member or a staff mediator. This target has been achieved in 100 per cent of matters. See Table 26 for further information on timeliness.
|Table 26—Anti-bullying matters—timeliness|
|Time taken to start to deal with matter (days)|
* 100th percentile is the longest time (days) taken to deal with a matter.
More than 270 anti-bullying conferences and hearings occurred from 1 January to 30 June 2014.
Twenty one anti-bullying matters have been finalised by a decision; of those, 20 were dismissed and one was granted. See Table 28 for a full breakdown of decisions.
|Table 27—Finalisation of matters|
|Application withdrawn early in case management process1||59|
|Application withdrawn prior to proceedings2||34|
|Application resolved during the course of proceedings3||63|
|Application withdrawn after a conference or hearing and before decision||20|
|Application finalised by decision||21|
(1) Applications withdrawn with case management team or with Panel Head prior to substantive proceedings. (2) Includes matters that are withdrawn prior to a proceeding being listed; before a listed conference, hearing, mention or mediation before a Commission Member is conducted; before a listed mediation by a staff member is conducted. This also includes matters where an applicant considers the response provided by the other parties to satisfactorily deal with the application. (3) Includes matters that are resolved as a result of a listed conference, hearing, mention or mediation before a Commission Member or listed mediation by a staff member.
|Table 28—Finalisation by decision|
|Jurisdictional objection upheld||3|
|Bullying not found or no risk of bullying continuing||4|
|s.587—includes matters not pursued by applicant or not made in accordance with the Act||13|
|Total applications dismissed||20|
|Worker at risk of continued bullying—order issued||1|
|Worker at risk of continued bullying—order yet to be issued||0|
|Worker at risk of continued bullying—further decision and order issued||0|
|Total applications granted||1|
The Commission’s focus is to resolve the matter and enable normal working relationships to continue. We can only make an order where there is a risk that bullying behaviour could continue.
To date around 60 applications per month have been received. However, trends are still emerging in application lodgments and it is too early in the jurisdiction to accurately predict how it might mature.
Commencing the jurisdiction
Commencing the jurisdiction was challenging for the Commission as it was the first of its kind, with no comparable jurisdiction in Australia or internationally we could look to for guidance.
It was, therefore, impossible to accurately predict the number of applications that might be received. This required the Commission to put contingencies in place to deal with a potentially fluctuating workload including:
- the flexibility to increase or decrease staffing levels
- flexibility around case management, and
- flexibility in the work required of the Panel Head.
Prior to commencement, the Commission developed and launched a Case Management Model after extensive consultation with stakeholder groups and experts working in the field. This model reflects the unique nature of the anti-bullying jurisdiction including the scope of parties, workplaces and issues to be dealt with.
Members and staff participated in an extensive number of community presentations to assist in developing an understanding of the Commission’s role and powers in relation to anti-bullying. Considerable resources were also made available on the Commission’s website including an eligibility checklist.
The Case Management Model has been successful to date and, while subject to refinement, the processes have not altered significantly since commencement. Forms, information materials and the anti-bullying benchbook have been adjusted to reflect lessons learnt from the initial matters handled by the Commission.
The Commission deals with anti-bullying applications in quite a different way to other types of applications, recognising the potentially intense emotional and psychological issues that may accompany these matters.
Each application is assessed at an early stage to determine if it falls within the Commission’s jurisdiction, the nature of the alleged bullying and how the application should be dealt with. Parties are also contacted to discuss how their matter will proceed—usually within 24 hours of the application being lodged.
When appropriate, matters may be referred to mediation with a qualified staff member. During the year staff conducted 13 mediations, mostly by phone. The great majority of matters have been dealt with directly by Members, by conference or hearing. In most cases an informal conference is conducted by a Member in order to gain an appreciation of the issues, stabilise the relationships and make future arrangements. For more information about the process see In focus—Setting up the anti-bullying jurisdiction.