First Decision for the Fair Work Commission's Anti-Bullying Regime
The Fair Work Commission's (FWC) Anti-Bullying Regime opened its doors on 1 January 2014. The new Anti-Bullying Regime got off to a leisurely start with only 66 applications being received in the first few months of operation. Applications are, however, progressing and earlier this month the FWC determined its first jurisdictional objection to an application for a FWC order to stop bullying1.
FWC has Power to Consider Pre-1 January 2014 Bullying Behaviours
In a recent matter, an employer objected to the application for a FWC order to stop bullying on the basis that the alleged bullying conduct occurred prior to 1 January 2014, when the Anti-Bullying Regime commenced. The FWC confirmed that:
- the objective of the Anti-Bullying Regime is to stop future bullying behaviour, not to punish past bullying behaviour or compensate victims of bullying behaviour
- given the objectives of the Anti-Bullying Regime and the inability of the FWC to attach any liability to past instances of bullying behaviour, the FWC has jurisdiction to hear and determine applications involving alleged bullying conduct which occurred prior to 1 January 2014.
Unique Challenges Faced by Employers in the Life Sciences Industry
While the FWC has the power to hear and determine applications involving alleged bullying conduct which occurred prior to 1 January 2014, the FWC must determine that the following conditions are satisfied before making any orders to stop the alleged bullying behaviour:
- the worker has been bullied at work
- there is a risk that the worker will continue to be bullied at work.
The statistics released by the FWC confirm that a significant number of the applications for FWC orders to stop bullying relate to alleged bullying by supervisors and managers. Further, a high proportion of the alleged bullying behaviour occurred in a performance management and/or disciplinary action context.
These statistics suggest that the employers defending the applications will rely on the exemption in the Fair Work Act (Cth) 2009 that 'reasonable management action carried out in a reasonable manner' does not constitute bullying.
Employers in the life sciences industry face a number of unique challenges in relation to performance management and disciplinary processes which may create an additional hurdle to overcome when seeking to establish that a management action was both reasonable and carried out in a reasonable manner. Some common challenges faced include:
- performance managing territory based sales representatives
- a high incidence of global mobility with overseas supervisors and managers managing local reports remotely
- an increase in the travel requirements for local staff which minimises face to face interactions and requires performance management processes to be conducted electronically or by phone
- highly attractive discretionary bonus schemes with eligibility tied to discretionary managerial assessments
- relatively high proportions of employees with long years of service and a high incidence of toleration for their past underperformance.
The life sciences industry is also characterised by a number of environmental factors that are conducive to bullying behaviours, including:
- high pressure working environments
- incentive based pay arrangements
- key performance indicators (KPIs) relating to achieving competitive targets
- work related travel and mandatory worker attendance at interstate and international conferences and events.
Future-Proofing in the Life Sciences Industry
There are a number of actions that can be taken by life sciences employers to assist with successfully establishing that the conduct in question was both a reasonable management action and carried out in a reasonable manner:
- training workers to ensure they understand the difference between bullying and reasonable management action
- clearly defining bullying and reasonable management action in relevant policies
- implementing a clear and effective internal complaint and grievance handling policy and procedure
- implementing a clear, flexible and effective performance management and discipline policy
- up-skilling managers and supervisors with the tools to confidently performance manage and discipline workers in a 'reasonable manner' by providing performance management training and guidance
- including effective performance management processes as part of the managerial related KPIs for managers and supervisors
- encouraging the use of videoconferences, teleconferences, Skype etc as part of remote performance management processes instead of an over-reliance on email based feedback
- providing early support and guidance to managers and supervisors in the informal performance management and coaching stages – rather than reserving assistance for formal performance management processes only
- encouraging an environment where manager and supervisor territory and interstate office visits are customary and not reserved for formal performance management discussions
- identifying specific environmental factors that may increase the likelihood of inappropriate conduct in the workplace and devising appropriate risk minimisation strategies.
While the up-take by workers seeking FWC orders to stop alleged bullying behaviours has been initially low, the FWC has reported a high level of activity by workers in terms of utilising the bullying help line (which on average receives more than 200 calls a week) and the dedicated anti-bullying section of its website (which has received approximately 28,000 hits to date).2
As workers familiarise themselves with this new avenue to pursue workplace bullying, employers in the life sciences industry can start future-proofing their performance management and disciplinary processes to help minimise and defend applications for FWC orders to stop alleged workplace bullying.
15 February 2014 Media Release Fair Work Commission Releases First Anti-Bullying Statistics
2Ms Kathleen McInnes  FWCFB 1440
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