The recent focus on workplace bullying has been taken to a new level with two recent and important developments: the release of a Guide for Preventing and Responding to Workplace Bullying (Guide) by Safe Work Australia, and the release by the Fair Work Commission (FWC) of a case management model for, and draft guidance on, its new anti-bullying powers.
These developments confirm the significant changes that have been made to the existing legislative and regulatory framework dealing with workplace bullying.
Employers should familiarise themselves with the Guide and the information released by the FWC in order to ensure they take steps towards fulfilling their work health and safety duty to prevent workplace bullying, and to minimise the chances of being involved in anti-bullying claims before the FWC from 1 January 2014.
SAFE WORK AUSTRALIA GUIDES RELEASED
Safe Work Australia, the federal agency dedicated to improving occupational health and
The Guide replaces the draft Code of Practice on Preventing and Responding to Workplace Bullying (Draft Code), the latest version of which was released in May 2013 and was open for public consultation until July 2013.
What does the Guide contain?
The Guide provides guidance to persons conducting a business or undertaking on how to manage the risks of workplace bullying as part of meeting their duties under work health and safety laws.
The Guide contains:
- a definition of workplace bullying
- an explanation of how workplace bullying can occur and its impact
- guidance on how the risks of workplace bullying can be identified, controlled and monitored
- guidance on how to respond to workplace bullying, including several key principles that should guide any response
- information on how workplace bullying investigations should be conducted, and
- a sample workplace bullying policy.
What is the significance of the Guide?
The Draft Code contained detailed and prescriptive guidance.
Having received numerous submissions on the Draft Code, many of them critical of the prescriptive approach then adopted by Safe Work Australia, Safe Work Australia drafted the Guide to be less prescriptive in its approach and guidance, perhaps in recognition that each organisation is different and that it is better to provide general guidance which each organisation can flexibly adopt to suit it and its industry.
The Guide aims to help employers comply with their work health and safety duty to provide a safe workplace by providing them with a wide discretion to choose the options that best suit their organisation's circumstances.
The Guide contributes to the overall state of knowledge on hazards, risks and controls relevant to workplace bullying, and may be used as evidence in court proceedings.
Importantly, the Guide is not a code of practice. A code of practice prescribes the preferred methods of identifying, controlling and reviewing health and safety risks in the workplace, and is automatically admissible as evidence in court about what is known about a hazard, risk or control. This is why Safe Work Australia's decision to release a Guide rather than finalise the Draft Code is significant.
Nevertheless, the Guide will form part of the still-developing best practice standard for preventing and managing workplace bullying. As a result, employers should only depart from the Guide if they have good reason to do so.
Guide for workers also released
Safe Work Australia has also released Dealing with Workplace Bullying - A Worker's Guide, which aims to help workers (including alleged victims, witnesses and perpetrators) determine if workplace bullying is occurring, and how the matter may be resolved. It also sets out what a worker should expect from their employer when a workplace bullying matter arises.
FWC'S ANTI-BULLYING POWERS TAKE SHAPE
The release of the Guide also closely coincides with the FWC's release of information about how its new anti-bullying jurisdiction, due to start from1 January 2014, will be exercised and managed in practice, as well as some draft guidance on some key aspects of its new powers.
In releasing this information, the FWC has clarified many of the previous uncertainties that had already been identified as to how anti-bullying claims would work in practice.
How will anti-bullying applications be run by the FWC?
The FWC has indicated that the process, in summary, will be as follows:
- worker lodges application – a worker will initially lodge an application with the FWC, for which there will be no time limit (unlike unfair dismissal and adverse action applications). The FWC will prioritise applications which involve a significant risk to the parties or to working relationships
- application is provided to the employer and the alleged bully – FWC will then provide a copy of the application to the employer, and then, after 24 hours, also to the alleged bully or bullies, who will each have an opportunity to respond in writing
- the FWC reviews all the information and reports to the Panel Head – the FWC's anti-bullying team will then provide a report to the head of the FWC's anti-bullying panel (Panel Head), which report will describe the claim, including whether it involves any potential jurisdictional issues, the nature of the alleged bullying conduct, whether it may be suitable for mediation, and any factors that might indicate it needs to be dealt with urgently
- Panel Head decides the next steps – on the basis of the report, the Panel Head will then decide whether to:
- immediately hear any jurisdictional issues, that is, issues which may result in the application being dismissed before the substantive allegations are even considered. For example, if the individual that has lodged the claim has ended their employment in relation to which the bullying occurred, then the individual may not be entitled to lodge the application on the basis that they are no longer exposed to the bullying complained of
- assign the case to a member of the FWC for either mediation/conciliation or hearing, or
- assign the case to a FWC staff mediator to conduct a mediation or make further contact with the parties to more fully investigate the circumstances before it is assigned to a member of the FWC
- hearing – if the matter is not resolved at mediation/conciliation, FWC will assign it to a FWC member for hearing. If the member that is assigned to the matter did not conduct the mediation/conciliation, then a further preliminary conference may be held so that the FWC member can better understand the issues and determine how best to approach the matter, and
- application dismissed or anti-bullying orders made – once a hearing is conducted, the FWC will then either dismiss the application or make appropriate orders, which may be directed at the worker's employer, the bully's employer, the alleged bully and/or co-workers. An appeal to the FWC's decision may be made by leave to the Full Bench of the FWC.
What will the mediations/conciliations involve?
It appears that the mediations or conciliations that are likely to take place after an anti-bullying application is lodged with the FWC will involve the alleged victim, the alleged bully, and the employer, and will be conducted in a similar way to the conciliation conferences which currently take place as part of unfair dismissal and adverse action applications.
The FWC has confirmed that, within its anti-bullying jurisdiction, mediations will only be proposed when it is considered appropriate taking into account the parties and the allegations made. If mediation is arranged by the FWC, it will be a confidential and voluntary process, during which the mediator will provide guidance and options for resolution, but will not make a determination or recommendations on possible outcomes.
As an alternative to voluntary mediation, the FWC may require that the parties participate in a conciliation conference. Conciliation will only be able to be conducted by a member of the FWC, and the parties may be compelled to attend. Conciliation will differ slightly from mediation in that the member will play a more active role in the potential resolution, including by making relevant assessments and recommendations.
The FWC has emphasised that the focus of any mediation or conciliation will be on reaching a resolution of the issues to allow cooperative working relationships to continue. In keeping with that emphasis, the FWC will not promote or recommend monetary settlements be reached. Whether this turns out to be the case in practice will be interesting to see.
DRAFT GUIDANCE ON KEY ASPECTS OF THE FWC'S ANTI-BULLYING JURISDICTION
The FWC has also recently published a draft anti-bullying "benchbook" (Benchbook). The Benchbook is designed to assist those lodging or responding to anti-bullying applications, and in it the FWC has provided some guidance on what may constitute workplace bullying, and the scope of the "reasonable management action" exception to workplace bullying.
The Benchbook is currently in draft form and open for public consultation. Given this, and also that the guidance provided within it is based on decisions from other jurisdictions, it should only be seen as a general starting point from which the FWC's approach in this new jurisdiction will develop, and not as a definitive guide to its likely approach in anti-bullying cases. It is expected that the Benchbook will be finalised prior to 1 January 2014 and it will be a "living document", updated to take into account decisions of the FWC as and when made in this new jurisdiction.
What are some examples of workplace bullying?
The Benchbook lists several examples of conduct that could be considered to be bullying, based on legal cases in other jurisdictions:
- aggressive and intimidating conduct
- belittling or humiliating comments
- spreading malicious rumours
- practical jokes or initiation
- exclusion from work-related events
- pressure to behave in an inappropriate manner, and
- unreasonable work expectations.
What is "reasonable" "management action" carried out in a "reasonable manner"?
Under the Fair Work Act 2009 (Cth), behaviour will not be considered bullying if it is reasonable management action carried out in a reasonable manner.
Based on legal cases that have considered this issue (albeit primarily in a workers compensation context), the FWC has indicated that the following may be considered "management action":
- performance appraisals
- ongoing meetings to address underperformance
- misconduct counselling or disciplining
- modifying a worker's duties (including by transferring or redeploying the worker)
- investigating alleged misconduct
- denying a worker a benefit, and/or
- refusing an employee permission to return to work due to a medical condition.
Importantly, an informal, spontaneous conversation between a manager and a worker may not be considered management action, even if issues such as those listed above are raised. If this position is ultimately adopted by the FWC, it will be important to ensure that managers and supervisors conduct their substantive "management actions" through formal meetings with workers.
On the question of whether management action is "reasonable", the Benchbook states that it will be answered by objectively assessing the action, including the circumstances leading up to, and during, the action, and the consequences of the action. Importantly, this will include considering whether the employer departed from any established workplace policies or procedures.
This is not to say that perfection will be expected; the test will not be whether the action could have been taken in a manner that was more reasonable, or whether any particular step was unreasonable, but whether the overall course of action was reasonable.
The determination of whether management action is carried out in a "reasonable manner" will involve similar considerations. Generally, it will involve considering, from an objective viewpoint, the circumstances of the alleged victim, how the action was implemented, whether established policies or procedures were followed, and if any investigation was carried out in a timely way.
HOW WILL THE GUIDE AND THE FWC'S NEW BULLYING POWERS INTERACT?
The content of the Guide, and the FWC's approach in anti-bullying cases, are likely to significantly influence each other.
The Guide itself notes that it will be revised to incorporate any significant developments in preventing and responding to workplace bullying as these evolve, which will presumably include the FWC's exercise of its anti-bullying powers from 1 January 2014. This is especially the case as and when the FWC begins making orders aimed at employers requiring them to take certain steps to better manage workplace bullying.
Conversely, the FWC itself and/or parties involved in anti-bullying cases, may (and indeed should) view the Guide as an influential statement of best practice when it comes to dealing with workplace bullying. The FWC and interested parties may rely on the Guide, either in the mediation/conciliation or hearing stage in anti-bullying proceedings, to argue that certain conduct was or was not bullying, or to show that an employer's response and/or workplace systems and policies were either adequate or inadequate.
WHAT DO EMPLOYERS NEED TO DO?
These developments further emphasise the increasing focus on workplace bullying, which will potentially take on very practical dimensions from 1 January 2014 as the FWC's anti-bullying powers come into effect.
As a result, employers should familiarise themselves with the Guide and make sure that they have taken the necessary steps to address workplace bullying.
As a starting point, employers should take the prevention and management of workplace bullying seriously, including through reviewing, improving, embedding and, most importantly, following their anti-bullying practices and policies, from now.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.