In focus Setting up the anti-bullying jurisdiction

In focus

Transcript for anti-bullying jurisdiction video

Narrator:

Commissioner Hampton, Anti-bullying Panel Head:

The nature of our jurisdiction is preventative—we can’t make orders for compensation we don’t make orders declaring people guilty of any offence. What we do is we make orders to prevent further bullying conduct in workplaces. What its effectively designed to do is perhaps unlike many of those other options that still remain available is to deal directly with the alleged bullying behaviour before it actually escalates and leads to the conclusion of the employment relationship.

Narrator:

Workplace bullying can describe a range of behaviours.

Jennifer Anderson, Anti-bullying Team Manager:

Bullying under the Fair Work Act is repeated unreasonable behaviour. So its behaviour that has to have occurred more than once and it’s unreasonable. So it’s going to be something that’s unreasonable in the context of the workplace.

Commissioner Hampton, Anti-bullying Panel Head:

These are often emotional and difficult matters both for applicants and for individuals who are on the other end of the application so again they create challenges for the Commission and we’ve tried to both provide training and processes deal with all of that.

Jennifer Anderson, Anti-bullying Team Manager:

We didn’t really know what to expect so that has been the first hurdle to get over is settling in to what the jurisdiction is actually about. What we’ve found is that we’ve received pretty consistent numbers of applications each month.

The case management team deals with an application as soon as it’s been lodged up until it’s allocated to either a staff mediator or a member of the Commission to deal with the application.

We contact the applicant in the matter—so the worker who has lodged their application—and talk to them about the application that they’ve made; raise any issues of concern if they have indicated that there is some sort of imminent risk at the workplace or if they’ve indicated that they’ve got concerns around self-harm or other serious issues. We have that initial discussion with the applicant and then we have that same conversation with their employer. We usually do that on the same day as the application has been lodged so we deal with them very quickly.

Commissioner Hampton, Anti-bullying Panel Head:

What will then happen is the matter will be consolidated in a report—that is the staff of the Commission will make a report—and the person acting as the panel head will then make a decision as to how, when and where the application will be progressed by the Commission.

Unlike the unfair dismissal jurisdiction not all matters are subject to conciliation or mediation. We use conciliation or mediation when it’s appropriate and that is a decision that’s made having regard to the nature and circumstances of the parties, the nature of the alleged bullying conduct and any response that’s been provided to that.

The earlier they are resolved, the more informally they are resolved the more there is a resolution which if not initiated in the workplace but involves the direct workplace participants the more likely it is that there will be a proper resolution which ensures an ongoing employment or contractual relationship.

Narrator:

The new jurisdiction raised a number of challenges for the Commission.

Commissioner Hampton, Anti-bullying Panel Head:

Because we are dealing with multiple parties in an application they are often unrepresented, so in that context the Commission has to establish its processes and its approaches around the fact that unlike most matters the Commission deals with there are not two parties, there can be many parties. In fact, some applications name multiple individuals so you might have say up to a dozen in a more extreme case.

Jennifer Anderson, Anti-bullying Team Manager:

We put a lot of effort into the setting up an establishment process. So making sure that we were prepared was a really critical part of then how the team has been able to proceed since the commencement of the jurisdiction.

Commissioner Hampton, Anti-bullying Panel Head:

We were also assisted in that regard by the consultation we undertook with the parties or representatives of the major parties in particular the trade union movement and the employer community and a number of psychologists and other professionals operating in this area.

Jennifer Anderson, Anti-bullying Team Manager:

Because we are often dealing with parties on both sides who can be in fairly fraught situations—we can be dealing with people who are often distressed. So the personal contact that we have and the processes that we go through whilst they are labour intensive—are also critical to the success of the process so far.

The commencement of the new anti-bullying jurisdiction posed procedural and administrative challenges for the Commission. However, in its first six months the processes established for dealing with anti-bullying matters have been well-received and effective.

The anti-bullying jurisdiction required a new way of thinking for the Commission. Anti-bullying Panel Head Commissioner Hampton said, “We’re applying different concepts here, because this is all about preventive maintenance of employment and personal relationships—it is not about picking up the pieces after the event. So in that context it’s a different skill set.”

The jurisdiction is designed to prevent further bullying at work from occurring. It confers no powers on the Commission to order compensation or declare parties to be guilty. This jurisdiction is in addition to and does not replace other mechanisms that can deal with bullying, such as work health and safety, anti-discrimination or even the general protections or general dispute resolution provisions of the Fair Work Act 2009.

“The statutory purpose of the jurisdiction is to create a way of quickly and directly dealing with bullying behaviour prior to it escalating and leading to consequences for both the individual who’s the subject of it, the organisation where it occurs, and the person who is alleged to have conducted the bullying behaviour,” Commissioner Hampton said.

International research has shown that dealing with bullying at work early and informally produces better outcomes in terms of maintaining constructive and workable ongoing workplace relationships. The Commission’s processes for dealing with anti-bullying matters reflect these priorities and are quite different to how we deal with matters such as unfair dismissals.

“We have an initial conversation with the applicant and then we have that same conversation with the employer. We usually do that on the same day that the application has been lodged so we deal with them very quickly,” Jennifer Anderson, who manages the anti-bullying team and was extensively involved in the consultations with stakeholders on the processes for dealing with these matters, said.

When an application is received the anti-bullying case management team contacts the applicant—usually within 24 hours. Ms Anderson said, “We talk to them about the application that they’ve made and raise any issues of concern if they have indicated that there is some sort of imminent risk at the workplace or if they’ve indicated that they’ve got risks around self-harm or other serious issues.” The anti-bullying case management team deals with the application until it is allocated to a staff mediator or Commission Member.

So far, many matters have resolved without going to formal proceedings. Commissioner Hampton said, “What we often try to do is have them resolved rather than determined because obviously you can do that more quickly and more inclusively and less judgementally, and in the context of an ongoing employment or contractual relationship all of those are positives.”

Commissioner Hampton is content with the first six months operation of the jurisdiction. He said, “We were well prepared for the nature of the parties and the nature of the issues and the challenges that would arise, and we put a lot of time into designing a system and providing resources and training for Members and staff.”

Importantly, many of the applications that fall within the jurisdiction have been resolved in a manner that has dealt with the underlying issues and strengthened the workplace relationships.

Fair Work Commission

Australia's national workplace relations tribunal

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In focus Setting up the anti-bullying jurisdiction