ORDER

Fair Work Act 2009
s.789FC - Application for an order to stop bullying

Sharon Bowker, Annette Coombe and Stephen Zwarts
v

DP World Melbourne Limited T/A DP World; Maritime Union of Australia, The, Victorian Branch and Others

Application for an FWC order to stop bullying; whether applicants bullied at work; whether risk of bullying at work; steps taken to mitigate risk of further bullying at work; whether further orders appropriate; orders made.

[1] Further to my decision in [2015] FWC 7312 of 16 November 2015, I make the following orders:

1. DP World Melbourne Limited T/A DP World (DP World) is to arrange for a Work Safe Victoria inspector to attend a meeting separately convened with each Applicant (Ms Sharon Bowker, Ms Annette Coombe and Mr Stephen Zwarts) and DP World representatives in order to review and finalise:

a. The risk assessment that has been prepared for each Applicant; and

b. The return to work (RTW) plan for each Applicant.

2. DP World will implement any further control measures or any other steps identified and included in the risk assessments or RTW plans following the meeting(s) in order 1 above.

3. DP World is to actively monitor the effectiveness of the control measures and other steps identified in the risk assessment and RTW plans applicable to each Applicant and take reasonably practicable steps, after consulting the relevant Applicant, to alter or strengthen any control measure as may be necessary having regard to the circumstances of each Applicant while at work.

4. DP World is to inquire into, arrange for and commission, the training of any of its management personnel who are, or are likely to be required by DP World, to investigate complaints about workplace bullying at West Swanson Terminal (WS Terminal) (relevant management personnel). The training is to include a focus on forensic investigative techniques including obtaining and managing of information, interviewing complainants, interviewing witnesses, manner of questioning and active listening, observing and assessing. The training will be ‘one off’ training to be rolled out to current or new management personnel and applies to relevant management personnel employed at, or deployed to, WS Terminal.

5. In conjunction with the training referred to above, DP World is to commission the preparation and deploy for use by relevant management personnel at WS Terminal, of a workplace investigation instruction manual. Any relevant management personnel employed after the date(s) of training referred to in order 4 above should receive an appropriate induction about the purpose and use of the workplace investigation training manual.

6. DP World is to review and amend its DP World Employee Handbook 2013 and its Workplace Behaviour Policy to ensure that these instruments make clear that:

a. Workplace bullying is an occupational health and safety issue;

b. Investigating workplace bullying complaints is one of the actions taken by DP World to comply with its obligations to provide and maintain a safe working environment under applicable OHS legislation;

c. Employees have a duty under OHS legislation to co-operate with DP World in any action it takes to comply with its OHS obligations, including action to investigate allegations of workplace bullying;

d. Employees also have a contractual duty to co-operate with DP World by providing honest answers to questions when asked and to follow lawful and reasonable directions given by DP World;

e. DP World expects that employees will comply with [c] and [d] above when asked to participate in any investigation or inquiry into a workplace bullying complaint or to provide information in relation to such an investigation or inquiry; and

f. A failure by an employee to comply with [c] or [d] above may lead to disciplinary action and in cases of serious failures, to dismissal.

7. DP World will develop and deploy training, training materials and other information reasonably necessary to support and reinforce the review and amendment of the DP World Employee Handbook 2013 and the Workplace Behaviour Policy.

8. DP World is to review, in consultation with the Applicants, the recommendations contained in the Security Risk Assessment prepared by Matryx Consulting Pty Ltd in April 2015, and give consideration to whether any further measures recommended by Matryx Consulting Pty Ltd, but not implemented by DP World, should be implemented.

[2] Orders 1–3 above will cease to apply in respect of each Applicant on the later of:

(a) the date on which the relevant Applicant returns to duties on an unrestricted basis; or

(b) 15 November 2016.

[3] DP World is to ensure that these Orders are complied with and implemented as soon as is reasonably practical.

[4] Consideration of whether any orders should be made in relation to the MUA is adjourned to a date to be fixed after 28 February 2016.

[5] Leave is given to any party to seek a report back or progress hearing within the period ending 15 November 2016 on giving the other parties written notice.

DEPUTY PRESIDENT

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