On 27 June 2013, Federal Parliament passed the Fair Work Amendment Act 2013 (Cth) (Amendment Act). This legislation implements a number of further recommendations of the 2012 Fair Work Act Review; and several other policy proposals including the all important new anti-bullying jurisdiction of the Fair Work Commission (FWC). In order to obtain support for passage of the legislation by the cross-bench MPs in the House of Representatives, the Government agreed to delay until 1 January 2014 the commencement of the anti-bullying provisions (read more>>).
The following article (kindly shared by our co-author Trinny) by Journalist Luke Williams, although dated 15 February 2013, addresses some interesting arguments with regards to the new bullying laws.
Workplace bullying is an abuse of power
By Luke Williams – 15 February 2013
Australians have faced up to it – our workplaces can be very nasty places. The victims of workplace bullying are too often left jobless, angry, uncompensated, lonely, panic-stricken wrecks.
A new independent right to complain about workplace bullying announced by the Gillard Government is a major step in the way we contemplate workplace rights. But will it work? (note: this refers to Fair Work Amendment Act passed on 27 June 2013 but delayed start for anti-bullying provisions t0 1 January 2014)
The details are scant; Workplace Relations Minister Bill Shorten says the plan would allow the Fair Work Commission to try to solve disputes or refer matters back to state workplace safety authorities. The Commission may be able to issue civil penalty orders and fines as high $33,000.
Best case scenario – working life may well get better for hundreds of thousands of Australian workers.
Revoltingly unnecessary workplace incivility will increasingly be consigned to yesteryear: while the right to be treated with dignity and respect at work becomes a commonly held value, perhaps even an expectation.
The commission’s proposed new role may also mean workplace bullying complainants will no longer need to navigate dodgy human resource departments, disingenuous internal investigations, competing legal definitions, adversarial insurance companies, disbelieving psychiatrists and ill-fitting anti-discrimination or criminal law remedies in their search for justice. A speedy end to a bullying complaint could well have benefits for business too – reducing the costs of litigation, internal investigations, absenteeism and reduced productivity.
Worst case scenario – Well the usual critics have suggested the commission’s new jurisdiction means broadening the bullying definition beyond the legal confines of ‘OHS’; meaning petty industrial disputes about unsavoury, two-way behaviour may be litigated. Industry groups say the result will be more costs, more interference in ‘managerial prerogative’ and complaints used an industrial tool to push agendas and hurt enemies.
But it must be remembered ‘workplace bullying’ entered the popular lexicon in this country after the suicides of café worker Brodie Panlock and ambulance officer Christine Hodder.
Even this week (in February) Government agency Safe Work Australia surveyed close to 6000 workers and concluded 6.8% of Australian workers experienced bullying in the second half of 2012 – compared to international rates of about 1% to 4%.
Bullying did not become a national issue because of incidents of minor workplace politics. Increasingly the community has wanted something done. As stories of horrendous workplace warfare continue to surface industry remains painfully short on meaningful solutions and heavy on absolutist opposition to any further workplace regulation.
Bullying is at heart an abuse of power, the result of an asymmetry which may only ever be effectively remedied by legal intervention.
However, a collaborative, problem-solving approach is needed at commission hearings. In my view penalties should be kept to a minimum – though the very threat is likely to make workplaces become more civilised and better managed; bullying will now finally be taken seriously.
We may be back to where we started from if workplace bullying cases rest on technical, tit-for-tat, drawn out questions of whether impugned acts fit the legal definition of bullying (which will likely be “repeated, unreasonable behaviour directed towards a worker or a group of workers that creates a risk to health and safety”); legal definitions of bullying are imperfect, the result of political compromise and often highly nebulous.
Complainants already face the difficult task of proving certain things occurred – often without any witnesses and against the full resources of their employer.
Those accused of bullying often don’t even realise the impact of their behaviour, many are shocked to be labelled bullies. Many managers and co-workers need guidance, training and awareness rather than punishment.
The introduction of new commission anti-bullying powers also goes some way to divorce workplace bullying from the bizarre bureaucracy of ‘mental stress injury’ compensation claims.
Civility in Australian workplaces has been lagging behind international standards for quite some time and for the countless victims, this move by the government is long overdue.
Can Government regulation make people nicer? We are about to find out.
The article received 88 comments, which are worth reading.