Fair Work Commission | Anti-Bullying Case Management Model Procedures

21st November 2013

The President of the Fair Work Commission has published for public comment the draft Anti-Bullying Case Management Model and the Anti-Bullying Benchboook that will guide employers, employees and advocates on how the Commission will manage complaints of workplace bullying.

On the 1st of January 2014 the Fair Work Commission will have the power to recieve applications from employees alleging bullying and, where appropriate, to make orders that are directed to stopping such bullying. The amendments to the Fair Work Act requires the Commission to start to deal with a matter within 14 days of an application being made.

According the Act an employee will have been bullied at work from 1 January 2014 if an individual or a group of individuals ‘repeatedly behaves unreasonably towards the worker, and that behaviour creates a risk to health and safety’. On the other hand, the power to make orders to stop bullying does not apply to ‘ … reasonable management action carried out in a reasonable manner.’

The risks to employers from this new jurisdiction are profound and the gudiance provided by the Commission in the two publications is unlikely to ally fears that ths power to deal with complaints will simply present another opportunity for interference in the management of Australian businesses.

Admittedly, the problem emanates from the definition of bullying in the Act. The Commission will be obliged to determine whether action that is characterised as bullying by complainants is reasonable management action performed in a reasonable manner. As we all know, the dynamics of relationships between staff are complex and the demands placed on people often onerous. Far too frequently, employees that are not capable or are resentful of action taken to succeed in business will complain when challenged. It would be extraordinary for even the most experienced and wise arbitraters to even begin to appreciate the history, nature and competitive forces affecting working relationships in your business let alone judge whether your actions were reasonable.

Nevertheless, the new law will commence operation on 1 January 2014.

Further information will be available in the next few weeks including the final version of the two Fair Work Commission publications. I will also host a webinar prior to Christmas to ensure you are familiar with your responsibilities and understand the system ahead of the commencement of the new law. Details will be emailed to as soon as I can organise a suitable date.