The Fair Work Commission’s (FWC’s) new anti-bullying jurisdiction commences on 1 January 2014. On 20 November 2013, the FWC released a draft anti bullying Case Management Model and a draft Anti-bullying Benchbook for public comment. In this post we step through how the new laws might play out in practice once a complaint is made.
How will the FWC deal with anti-bullying applications?
The FWC is required to deal with an application promptly. The steps are:
1. Preliminary assessment of the application
Anti-bullying applications will go through a case management process similar to the administrative process for unfair dismissal applications. This process will involve FWC employees serving the employer with the application, even if the employer is not named as a respondent. The FWC with also serve the application on all the persons named in the application, which may, for example, be a manager or another worker.
An employer should consider raising any jurisdictional objections in its response to the FWC (for example, that the conduct does not occur within a constitutionally covered business).
FWC staff will conduct a preliminary assessment of the application, much like a triage assessment, and make a recommendation to the Panel Head. If appropriate, the Panel Head may hear and determine jurisdictional issues.
In most cases the Panel Head will arrange for the application to be mediated by a FWC mediator. This process is likely to be similar to unfair dismissal telephone conciliations, and will be conducted in private.
At no stage will the FWC promote or recommend monetary payments to settle applications. The FWC’s objective will be to resolve the issues so that constructive and cooperative relationships can be resumed.
While FWC mediation is voluntary, employers may consider that the best approach is to participate in these processes and try to resolve the matter prior to a formal hearing.
3. Allocation to a member
If the matter cannot be resolved, it will then be referred to a FWC member, who will conduct a preliminary conference to identify the issues to be resolved. The FWC member may then conduct a mediation or list the matter for hearing.
At a hearing, the FWC will receive evidence and submissions from the parties. Hearings will usually be public.
If the FWC makes an order that bullying stop and this order is breached by a party, that party could be exposed to a penalty of up to $10,200 if they are a person, or $51,000 if they are a corporation.
What happens if an application is lodged with the FWC while an internal grievance procedure is ongoing?
If the FWC proposes to make an order to stop bullying, it must take into account an employer’s internal grievance procedure in determining how to deal with the bullying application. The draft Case Management Model states that information issued by the FWC relating to the anti-bullying jurisdiction will encourage prospective applicants to first raise issues in the workplace.
In practice, it may be that the FWC will try to avoid dealing with an application (whether by mediation or hearing) until the internal grievance procedure comes to an end. This would be a sensible approach, as it is usually in the interests of all parties to resolve any bullying swiftly and within the workplace.