If a worker believes he or she has been bullied,
effective 1 January 2014, they can apply to the Fair Work
Commission for a "stop bullying order". We've
previously reported on the nature of the jurisdiction, and the
uncertainty about how it will operate in practice (here and here). But voila! The FWC now has released the
Anti-bullying guide and a fancy
flowchart to place some meat on the bones.
We now have a bit of guidance on what the FWC is required to do
in order to meet its obligation to "start to deal with an
application within 14 days". It seems that complaints will be
subject to a screening process. The employer and alleged bully will
be provided an opportunity to respond to the complaint. The FWC has
power to knock out complaints at that stage without proceeding to a
conference, mediation or hearing. So that's good news.
President Justice Ross has underscored that the jurisdiction is
not about compensation. The purpose of the laws is to prevent and
stop bullying. Only existing employees are eligible to lodge a
complaint, and the FWC can only make an order where there is a risk
of the bullying continuing.
The draft FWC application form has also been released. The
complainant is invited to have their say about the remedy they are
seeking by ticking a box: an order by the FWC to prevent further
bullying; investigations (or further investigations) conducted by
the business; counselling or coaching/mentoring support; an
apology; transfer to another work area or a change of roster;
development or improvement of policies in the workplace to deal
with bullying; or "other", with the complainant invited
to provide details.
So watch this space. The FWC has already revealed it is
expecting a significant number of complaints.
And in other bullying news, you'll recall that way back in
2011, Safe Work Australia released the Draft Code of Practice for
Preventing and Responding to Workplace Bullying as part of the WHS
Well, after kicking around the Draft Code for some time with
lengthy consultations, it has now been abandoned and replaced with
the "Guide for Preventing and Responding to Workplace
Bullying". The difference? The Draft Code was criticised
for being way too prescriptive on methods to achieve compliance
with the model Work Health & Safety Act. The Guide is less
formal and prescriptive. Application of an approved Code of
Practice on a subject matter is admissible as evidence of whether
there has been compliance with an obligation under the Act. In
strict terms, a Guide doesn't have the same force. In practical
terms however, employers should still pay heed.
Still don't have a bullying policy or complaint handling
process? Time to get your house in order.
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quite proud of it really.
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