Draft rules for how the Fair Work Commission will deal with
bullying complaints have been released for public comment.
How the Fair Work Commission proposes to handle bullying
Application and initial assessment
The worker lodges the application. The application is checked to
ensure it is complete and valid, and then served on the employer /
principal, and, in most cases, the alleged bullies. Where feasible,
contact will be made with the employer / principal. All will be
given an opportunity to be heard, before any substantive
The anti-bullying team gives the Panel Head a report outlining
whether the matter involves any potential jurisdictional issues,
the nature of the alleged conduct, whether it may be suitable for
mediation, factors that might indicate the degree of urgency and
other relevant factors that would inform a decision about the
assignment of the application.
Those factors are not spelt out, but we would hope that
consideration would be given at this stage to whether the worker
has utilised internal resolution options, or if any ongoing
internal investigation is still to be completed.
The Panel Head then decides if the matter will be assigned to a
Member for mediation or determination.
This is confidential and voluntary, and will only be proposed
where it is appropriate, having regard to the nature of the parties
and the allegations made in the application. The aim will be to
resolve the issues so the parties can have constructive and
co-operative relationships with each other.
If mediation isn't pursued, or it doesn't resolve the
complaint, the complaint will go to hearing (which, unlike
mediation, will generally be public).
Generally, the Member will convene a preliminary conference of
relevant parties with a view to understanding the issues involved,
the position of the parties and the best approach to the matter.
Conciliation or mediation could also be pursued at this stage.
Giving feedback to the Fair Work Commission
There is no set date for comments to be submitted, but the
Commission has said it would appreciate any initial feedback by mid
to late December in time for the start of the new anti-bullying
jurisdiction on 1 January 2013.
The Commission acknowledges this is new territory for everyone,
and so it will review the new system in July 2014 and again in
There has been some disquiet about the possible complexities for
employers, including the prospect of dealing with claims lodged by
the worker in the Commission and at the state level, or having its
own internal investigations cut short.
The Minister for Industrial Relations, Eric Abetz, has also left
the door open to legislative reforms, saying earlier this month,
"We said there should be a filter for the bullying claims and
to the credit of the Fair Work Commission, they are putting in
rules and systems that may well provide that filter. Now we are
prepared to legislate (but) if the Fair Work Commission can achieve
the same outcome by rules and procedures, I will just say well done
Clayton Utz communications are intended to provide
commentary and general information. They should not be relied upon
as legal advice. Formal legal advice should be sought in particular
transactions or on matters of interest arising from this bulletin.
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