New Fair Work Commission Report shows what’s happening (or not happening) with bullying claims

On 15 October, the Fair Work Commission released its Annual Report for 2013-14. The Annual Report provides a useful look into some facts and figures on the various types of claim for which the Commission is responsible. However, this year everyone’s attention was closely focussed upon the numbers arising from the new anti-bullying jurisdiction which commenced on 1 January 2014.

Before the commencement of the new anti-bullying laws, we were all braced for impact, expecting a tidal wave of claims across all sectors of the workforce. Certainly, there was a wave of interest – the Annual Report indicated that in the first six months of 2014, the Commission received more than 100,000 website inquiries and more than 3,500 telephone inquiries related to workplace bullying. However, this interest was not reflected in the number of claims, with the Commission receiving only 343 anti-bullying applications between 1 January and 30 June 2014.

The Annual Report shows that in the January to June 2014 period, more than 270 anti-bullying conferences and hearings occurred following applications made to the Commission. Although, only a minority of those applications resulted in formal decisions, with just 21 anti-bullying cases being resolved by way of a decision, and only one of those resulting in a finding that bullying had occurred and that there was a risk of further occurrence (the other 20 applications were dismissed). Despite the relatively small number of decisions which have arisen in this jurisdiction, employers have received some helpful guidance on the concepts which inform the new laws, particularly with respect to exceptions regarding  “reasonable management action” (we have previously written about these decisions on HReSource).  

We would only be speculating, but perhaps the underwhelming applications lodged figures in the new anti-bullying jurisdiction can be attributed to the types of powers afforded to the Commission to address bullying. In particular, the Commission has no power to award compensation even where bullying is substantiated, and is effectively acting as third party umpire for personal issues arising in the workplace. However, this “mediatory” purpose of the Commission in anti-bullying claims does appear to be effective in resolving claims once lodged:  63 of the applications received between January and June 2014 were resolved during the course of proceedings, and a further 20 were withdrawn after a conference or hearing, but before a decision. Whether these application resolution rates translate to resolution of issues in the workplace is yet to be seen.

A full copy of the Annual Report is available online here.

Sageco on the benefits of mature age workers

There’s no overlooking the painfully obvious fact of life that, with every day, each of us is getting older.  There is plenty of media focus on keeping healthy as we age, and all manner of jabs, tucks and other painful procedures to keep us looking young. Increasingly, we’re also being told that staying in work as we age is good for our social engagement and wellbeing. But what about employers – is there an upside for them too?

The Federal government’s proposed changes to the pension age might provide us with less of a choice as to how long we remain in the workforce, but continued engagement does harbour a silver lining for employees and business alike.

We put Catriona Byrne, of Sageco, a specialist mature age workforce planning firm, in the hot seat to talk to us about the benefits of engagement with mature age employees.

Catriona was quick to cite a multitude of benefits associated with keeping mature age employees engaged: “Mature age workers are typically the most experienced and reliable employees in a workforce. When they leave a business, their knowledge, experience and technical expertise leave with them, so retaining them will be increasingly important during a skills shortage“.  This is particularly the case in sectors where early to mid-career workers increasingly seek to undertake a “tour of duty” in Europe, Asia or the US.

So how can employers can maximise engagement with mature age workers? Not surprisingly, Catriona points to communication, encouraging employers to have conversations with their mature age employees about their working intentions: “Don’t make the assumption that older workers want to ‘retire’. Ask mature workers what their ‘working’ intentions are. What would help them choose to stay longer in the workforce? Is it flexible hours, flexible place of work, job redesign… it could simply mean an adjustment of start or finish times, a regular day off, or the ability to work from home“. Flexibility in the workplace is of course increasingly common and can certainly assist employers in implementing arrangements to retain the valuable skills and experience of their mature age employees.  Employees aged 55 and above now have a statutory right to request flexible work arrangements.

Catriona highlighted some other interesting facts and figures, which provide food for thought:

  • Research across a range of industry sectors (including education, electricity, gas and water, finance, manufacturing and transport, public service and services) found that mature age employees delivered an average net benefit of $1,956 per year to their employer compared to other employees, due to high retention rates, lower absenteeism, decreased recruitment costs and greater return on investment[1].
  • A study by Australian Health Management examined the daily work habits of 4,000 employees and found that employees aged 55 years and over performed at their best for approximately seven hours out of an eight hour day – this achievement could not be matched by other employees in the study[2].

  • Mature age employees, contrary to the assumption of many, are the fastest growing users of information technology[3] , and research supports the ability of these employees to learn newinformation technology skills and adjust to the introduction of new technologies in the workplace .

Of course, proposed changes to the pension age will make it increasingly important for employees to consider strategies for continued engagement in the workforce.  However, planning for increased mature-aged workforce participation shouldn’t be a one-way street:  engaging mature age employees should also be a focus for employees given the benefits of retaining skills and experience.

For more information on Sageco, visit http://www.sageco.com.au/

[1] Elizabeth Brooke, Paper commissioned by JobsEast for the conference Profiting from maturity: The social and economic costs of mature-age unemployment, Melbourne (2000), The Economic Benefits of Maintaining an Age Balanced Workforce
[2] Australian Health Management (2006), Baby boomers give employers a bang for their buck
[3] Australian Bureau of Statistics (2005), Year Book Australia, Cat. No. 1301.0

Urine drug testing confirmed to be ‘unjust and unreasonable’

In the recent decision of Maritime Union of Australia v DP World Brisbane Pty and others [2014] 1523, the Fair Work Commission (FWC) has once again ruled in favour of saliva drug testing as being a more appropriate method of drug testing in the workplace, when compared to other more intrusive methods.

The decision centred around a dispute between the Maritime Union of Australia (MUA) and a number of DP World group entities (DP World) over certain provisions in DP World’s proposed national drug and alcohol testing policy, which was intended to apply broadly to cover all types of workers including the stevedoring employees represented by the MUA.

In particular, the disputed terms of the proposed policy specified that if the results of an employee’s oral drug test showed positive, then a subsequent urine test (as opposed to a subsequent oral test) would be required for confirmation purposes.

The MUA’s position in the dispute was that urine testing should not be incorporated into the policy due to the fact that its terms did not accord with a certain negotiated provision contained in an enterprise agreement between the parties, which stated:

“The parties acknowledge that the Company’s drug and alcohol policy will incorporate a testing regime which includes random drug and alcohol testing and will utilise swab testing.”

The MUA interpreted the above provision as meaning that the only drug testing regime permissible under the policy was by means of oral swab testing. As a result, the MUA sought orders from the FWC requiring DP World to consult with them regarding the development of a new policy that would reflect such an interpretation.

In response, DP World argued that the way in which the term in the enterprise agreement was drafted did not rule out other forms of testing.

The FWC ultimately agreed with the MUA’s strict reading of the provision, and further found that urine testing was “unjust and unreasonable” in light of the evidence submitted by both parties. In reaching this decision, the FWC explained that the use of urine testing as a second test following a non-negative oral test would, “compromise employee privacy with no gain to reduction in risk to safety” in revealing intrusive information about an individual’s lifestyle rather than their ability to work.

The FWC also made the following conclusions, which are important to note:

  • The most appropriate method of testing in an initial random test and second confirmatory test is to be by way of oral fluid and not urine.
  • Confirmatory tests for drugs are to test for the same drugs as the initial test.
  • Where an individual returns a positive result in an initial and subsequent confirmatory test, it would not be unjust or unreasonable for further saliva testing of that individual to be undertaken from time to time for a period of up to 6 months after return to work.
  • It is not unjust or unreasonable for a union representative to be excluded from observing a random drug test selection process that is undertaken by an independent third party provider.
  • It is not unjust or unreasonable for a union representative to be excluded from observing the conduct of an initial drug test.
  • It is appropriate for an individual whose initial drug test shows positive to have the right to request the presence of a union representative for the conduct of any subsequent confirmatory test.
     

A tale of two bullies (and counting): New bullying laws and “reasonable management action”

The Fair Work Commission recently made its first substantive ruling on the merits of an application brought under the new bullying laws of the Fair Work Act. In a complex tale involving “upwards” bullying, “downwards” bullying and investigations being conducted over the top, this decision provides some guidance as to what will amount to “reasonable management action” for the purpose of these interesting new laws.

In the case of Ms SB [2014] FWC 2104, the Applicant commenced  a bullying complaint against her employer and another employee “CC”. The Applicant had been engaged to manage a small team of delivery support officers (or “DSOs“), one of whom was CC. In August of 2013, another of the DSOs (“MP”) made a bullying complaint against the Applicant, although an investigation conducted by the employer found the allegations made to be unsubstantiated.

In January 2014, CC made a bullying complaint against the Applicant. At the same time, the Applicant approached the employer’s HR department to talk about the conduct of CC. With conflicting stories at play, the employer moved to conduct another investigation, this time with the assistance of external lawyers.

Upon learning that CC had made a bullying complaint against her, and that the employer was once again investigating her conduct, the Applicant took her case to the Fair Work Commission. The Applicant alleged (amongst other things) that she had been subjected to unreasonable conduct on the part of both MP and CC, as well as the employer who accepted the bullying complaints of the DSOs and in conducting investigations in response.

Ultimately, Commissioner Hampton was not satisfied that the Applicant had been bullied at work. In reaching this finding Commissioner Hampton gave detailed consideration to what constitutes “reasonable management action”. Reasonable management action was raised by the employer in defence of its decision to investigate the complaints against the Applicant. Commissioner Hampton found that “reasonable management action” might include conducting an investigation into an employee’s behaviour. Indeed, it was said to be the very intention of this exclusion to preserve any everyday actions which direct and control the way work is carried out.

Most importantly, Commissioner Hampton emphasised that the test is whether the management action is reasonable, and not whether it could have been more reasonable or more acceptable.

So, in considering whether a particular course of action by management is reasonable, employers should be aware that:

  • nobody is perfect – management action does not need to be perfect to be considered “reasonable”;
  • focus on the big picture – whilst particular steps in a course of action may not be the best approach possible, the course of action itself may still be reasonable;
  • policies help – if there is a significant departure from employer policies in a particular course of action, this might lead toward a finding of unreasonableness;
  • be sensible – any course of action that is “irrational, absurd or ridiculous” is unlikely to somehow be “reasonable” in the same breath; and
  • actions are subject to objective assessment – what is important is the actual action taken, not how the action was perceived by the person affected.