Bullying complaints could swamp the Australian Fair Work Commission when it begins hearing cases in January 2014 because the Gillard government did not apply adequate methods to filter out dubious or unsuitable claims, a workplace academic says.
And a corporate law firm has warned businesses they need to take steps to ensure they do not become the ‘‘ poster child’ ’ for the new bullying jurisdiction.
From January 1, 2014 any employee who believes he or she is the victim of ongoing ‘‘ repeated unreasonable behaviour’ ’ by a co-worker can, on payment of a $65.50 application fee, ask the commission to make an order for the bullying to stop.
The commission, which must start dealing with a case within a fortnight once an application is received , cannot order any compensation from an employer; it can only direct the bullying to stop if there is a risk it will continue.
Fair Work Commission president Iain Ross has said it is difficult to predict how many anti-bullying applications would be made from January. ‘‘ But we expect it to be significant ,’’ he said recently.
The commission has predicted about 3500 bullying claims could be made in 2014.
The new laws, put in place in mid-2013 by then workplace relations minister Bill Shorten, make clear that ‘‘ reasonable’ ’ management action and performance management are not bullying.
Employer groups are concerned the laws will lead to a rush of complaints .
Workplace relations lawyers and advisers the FCB Group recently polled clients over the new laws. The firm’s managing partner, Campbell Fisher, said while most businesses had policies and procedures to prevent bullying, only half undertook regular training to reinforce anti-bullying practices.
Mr Fisher warned companies to take steps ‘‘ to avoid being made the poster child for the new jurisdiction if a claim happens to be made early in 2014’’ .
University of Adelaide workplace expert Andrew Stewart said the impact of the commission’s new powers was unpredictable.
While some bullying cases ‘‘ fell through the cracks’ ’ of existing laws on workplace discrimination or harassment, there was ‘‘ the potential for the commission to be swamped by matters that aren’t really about bullying at all’’ , Professor Stewart said.
And ultimately, the commission did not have statutory powers to direct applicants elsewhere, he said. ‘‘ They will be required to make a ruling if applicants are sufficiently persistent.’’
The Abbott government’s industrial relations policy, released before the election, supported the new bullying laws – so long as a worker first tried to seek help from ‘‘ an independent regulator’’ .
Accepted claims for mental stress in the workplace – about half of which are over bullying – peaked in 2004 at about 8000 across Australia . Since then they have hovered at about 6000 proven claims each year.
Until now, these claims were typically dealt with by a state workplace safety regulator.
Victoria has the highest number of successful bullying claims (about 25 per 100,000 workers), according to a 2010 Productivity Commission report that considered ‘‘ psychosocial hazards’ ’ in the workplace.
ACTU assistant secretary Michael Borowick said unions had fought for more than a decade for laws on bullying. He said recent stories of bullying that the ACTU had been told included:
A civilian in the police force who was ganged up on and left the workplace after five years suffering post-traumatic stress.
A retail worker who applied for worker’s compensation after being verbally abused and filmed by a manager, who then shared the footage with other staff.
A dental worker subjected to unwavering bullying and harassment including about her personal life.
A gay female working in a maledominated industry who experienced abuse over her sexuality.
The Productivity Commission report cited a study a decade earlier estimating that at least 350,000 Australians were bullied in their job each year, at a minimum economic cost of $6 billion.
Maurice Blackburn partner Josh Bornstein said if the Fair Work Commission was flooded by bullying claims, it would be proof there were serious issues in Australian workplaces.
‘‘ And if it turns out [many claims are] not genuine, the system might need to be tweaked,’’ he said.
Source: Clay Lucas | Workplace Editor | Fairfax Media
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