Federal anti-bullying legislation has now been in place for almost 8 months. Interestingly, over this period of time, the expected flood of bullying claims anticipated by the Fair Work Commission (FWC) has not emerged. The general consensus among lawyers and victims of bullying is that the victim is unable to receive any form of compensation and that this has deterred (many) applications.
The only remedy available under the new anti-bullying laws being an order that the bullying stop. Recently, a conference addressing the scourge of bullying has called on the federal government to give the industrial umpire the FWC powers to financially compensate both victims (and their families) for damages suffered in workplace.
Anti-bullying legislation – Call to give Fair Work Commission (FWC) compensation powers
When the new anti-bullying legislation came into place (Jan 2014), the FWC had anticipated and predicted that about 3,500 applications would be made per year for orders to stop bullying. However, the FWC’s first quarterly report showed that only around 150 applications were filed.
Why are there such few anti-bullying applications?
While many theories have surfaced, the consensus among lawyers and bullying victims (contacted by aworkcovervictimsdiary) is that anti-bullying applications are low because victims of bullying are unable to receive any form of compensation. The only remedy available under the new anti-bullying laws is an order that the bullying stop. In addition the applicant must also be at risk of future bullying, and be still at work – meaning that all those bullied victims who have left their employment as a result of (alleged) workplace bullying are not even eligible to apply.
Because no compensation (such as damages or even economic loss) can be awarded by the FWC, those unfortunates who have suffered a loss as a result of bullying prefer to make other applications in jurisdictions where awards are available. This includes making a workcover claim (if a person has been bullied in the workplace and it has had an adverse effect on their mental well-being), a general protection claim or even a discrimination claim.
Call to give Fair Work compo powers over bullies
By Marie Sansom on August 21, 2014 | Governmentnews
A conference addressing the scourge of bullying has called on the federal government to give the industrial umpire the Fair Work Commission (FWC) powers to financially compensate both victims and their families for damages suffered in workplace.
This month’s National Council Against Bullying (NCAB) conference, Beyond The Schoolyard, has called for federal legislation to be amended to address what it called “a number of deficiencies” in laws about bullying, including the inability of the Fair Work Commission to hand out compensation to people found to be bullied.
NCAB Chair and former Chief Justice of the Family Court, Alastair Nicholson, said the Fair Work Commission’s current powers did not include measures to financially penalise companies where bullying had occurred. The FWC can issue an order to stop bullying but Mr Nicholson said this was rarely effective.
“Quite often if you’re bullied at work in a small office environment is it really achievable to go to the Commission and ask that the bullying stop?” Mr Nicholson said.
“The chances are that you staying in that environment are negligible. You probably don’t want to go back there anyway. I don’t think it provides an impetus on employers to deal with workplace bullying.”
Mr Nicholson said that victims of bullying who pursued an action for damages under Common Law, often found the process complicated and expensive.
“It relies heavily on mediation and unless you have got someone helping you, you won’t exercise equal bargaining power. The mediation doesn’t work very well and people feel they’re being heavied,” he said.
WorkCover was another route to compensation but Mr Nicholson said he believed it only covered time when people were off work and offered limited lump sums.
He said that a better system would be for the FWC to have the power to assess the extent of damages and award a payment to cover loss of work and psychological damage.
Other recommendations from the bullying conference included making bullying policies mandatory in all schools and workplaces in every state and territory; creating a specific cyber bullying offence (which the federal government ruled out earlier this year); tackling homophobic and racist bullying and getting young people more engaged in strategies to reduce bullying.
[Read the full article here: Call to give Fair Work compo powers over bullies]
A word about the impact of a FW bulling claim on workcover claims
It has been said that the important but potential impact of a FWC bullying claim decision can/could have on a workcover claim has also not yet been considered in great detail. A FWC decision that bullying has occurred could/would have significant impact on a workcover claim, mainly because the decision could be used by a bullied worker to support a workcover claim. Meaning that a workcover insurer could well be swayed or convinced by such a FWC decision to accept liability for the workcover claim without having to conduct any (further) “independent” investigation, as is standard practice in a workcover claim (for stress/psychological injury). However the opposite is also possible, and workcover insurers may feel they are not bound by a FWC’s findings and will conduct their own investigation and assess the claim in accordance with the relevant workers compensation legislation.
Conversely, it is also possible for a bullied victim to use the accepted liability of a psych injury claim by the workcover insurer to sway or convince the FWC that there was bullying in the workplace. In other words, an admission in one area could pose a potential or very real problem for the other.
A workcover claim (for stress/psychological injury) can be a way for a worker to actually receive some compensation (e.g weekly payments, medical treatment costs and potentially a lumpsum) in relation to the workplace bullying.
“Deficiencies” in laws about bullying
Many believe there will be further “clarifications” and possibly amendments to the anti-bullying laws, including:
- Giving the Fair Work Commission (FWC) powers to financially compensate both victims and their families for damages suffered in workplace (and reviewing the general scope of orders that can be made by the FWC)
- Further clarification of the meaning ‘reasonable management action’
- Further clarification whether an alleged (bullying) behaviour constitutes a “risk” to health and safety
- Review of the “investigations” undertaken by employers in response to (alleged) bullying complaints – many believe these investigations are not up to the required “standard”.