Fair Work Commission Anti-Bullying Orders: Infantilising the Workforce

31st March 2014

The Fair Work Commission has published its first order to prevent workplace bullying. The Order issued by Senior Deputy Drake in Sydney on 21st March this year, inauspiciously resembles action a parent or primary school teacher would take with children that refuse to play properly together. The list of obligations imposed on the person accused of bullying effectively excludes that person, except in an emergency, from communicating with the accuser or having any contact without a third person present. Even the hours of work have been manipulated to ensure the two employees are not at the business premises at the same time of the day.

In fairness to the good Senior Deputy President, we don’t know the history of the dispute as the background to the claims of bullying have not been published. However, it is clear the parties to the dispute agreed on the outcome from the private conference. It bodes poorly for the future if this is indicative of the solutions offered by the Commission to stop workplace bullying.

I cannot think of a situation where a rational private sector employer would freely surrender authority to a third party government agency to determine when, where and how their employees do their jobs. Rather, I would expect the aim of any mediated or arbitrated order would be to enable people to work productively together or otherwise not at all. This order effectively limits the employer’s capacity to employ the antagonistic employees in a normal mature working relationship. It normalises the conflict rather than resolving it.

Interestingly, in the first month of the Fair Work Commission’s new anti-bullying jurisdiction (January 2014), 44 applications were made with respect to workplace bullying. Six applications were withdrawn during the preliminary assessment process. The remaining applications are being processed in accordance with the Commission’s case management model. While the Commission is required under the Fair Work Act 2009 to deal with applications within 14 days, January’s statistics reveal that most applications were dealt with on the day of lodgement.

The President of the Commission, Justice Ian Ross, said the January figures are not necessarily indicative of future trends. Let’s hope the orders of Senior Deputy Drake are not indicative of future orders to stop workplace bullying. If they are, then we are in trouble.