05 Dec 2013

Countdown to the Fair Work Commission's new bullying jurisdiction - Are you prepared?

by Christy Miller, Cassandra Heilbronn

Education and having good internal processes are key for any employer concerned about bullying in the workplace.

The Fair Work Commission will soon have new powers to intervene and seek to resolve workplace bullying disputes. But how will these new powers be implemented, what will be the impact on the employer, and how can it be managed?

There are a range of steps employers can and should be taking now, in preparation for 1 January 2014, to ensure they are well placed to respond to bullying complaints and the Fair Work Commission's intervention.

The Fair Work Commission's powers to deal with bullying complaints

The Commission's powers in relation to bullying complaints are dealt with in short compass. The Fair Work Amendment Act vests power in the Commission to make any order (other than reinstatement or a pecuniary penalty) it considers appropriate to prevent bullying.

The Commission must commence a review of a bullying application within 14days of its being made.

While the Commission must take into account any investigations already commenced by the employer, along with any relevant policies and procedures in place, the Act does not require the worker to utilise other options, such as:

  • requiring an employee to utilise internal resolution options; or
  • allowing an employer to finalise an ongoing investigation before it hears an application.

While the Coalition previously indicated it would require the worker to seek preliminary help, advice or assistance from an independent regulator before making an application to the Commission, this still does not require the bullying concerns to be brought to the employer's attention or for internal mechanisms to first be exhausted. It has not yet taken any steps to amend the legislation, preferring to wait to see how the Commission manages the claims first.

What employers should be concerned about

One of the key challenges for employers will be the risk of managing the tight time-frames for response, ensuring internal processes and responses (if completed quickly) can withstand the Commission's review and scrutiny and the potential of a multitude of proceedings on similar factual backgrounds if the employee is dissatisfied with the bullying jurisdiction outcomes.

For example, the behaviour might be characterised as bullying, but also as an OH&S breach, discrimination, or even adverse action. How the employer must respond will depend upon that characterisation and should seek to limit the potential of multiple complaints.

In addition, what amounts to reasonable performance management might be taken by the employee as a form of bullying, triggering a complaint to the Commission to which the employer is required to respond.

Other potential impacts for employers include:

  • employees using the bullying jurisdiction to effectively seek injunctive relief to prevent or stall a potential termination of employment;
  • having to finalise investigation subject to the FWC's oversight and timetable;
  • the potential for work health & safety regulators to become involved, and any material gathered or provided to FWC being used to support a safety prosecution;
  • a public test of internal policies and procedures; and
  • a possible public record of a finding of workplace bullying; and
  • adverse publicity.

Educating employees about bullying

How do we manage these risks? By ensuring employees:

  • understand the internal review mechanisms available to them to address workplace concerns;
  • fully appreciate what is and is not bullying – as distinct from reasonable management actions – to discourage misconceived complaints; and
  • understand the standard of conduct expected in the workplace – this will help an employer to maintain a reasonable management action defence.

Employers should take time now to review and refresh their internal policies and procedures and hold training sessions to fully inform employees on these points.

While it is not possible to anticipate what claims may be made, the best approach is for employers to prepare now and ensure good policies and procedures exist that can be relied upon to support your process.

Educating your management about bullying

To minimise the impact of bullying applications, employers must respond to claims promptly and consistently. Being able to rely on good procedures and complaint mechanisms will always assist.

However, this will also require undertaking necessary investigations in a timely manner, responding to frivolous, misconceived complaints and ensuring that there is a clear message that workplace bullying is not condoned.

This will place an employer in a good position to be able to respond to inquiries and concerns by the Commission urgently.


How the Commission will use its new found power remains to be seen. The potential available mechanisms to address complaints including the use of mediation and orders in relation to counselling, warnings, review of policies, apologies, continue to be debated.

The recently released Benchbook and case management model summary do provide some guidance in this area, though no set procedure that will be applied.

The Guide for Preventing and Responding to Workplace Bullying released by Safe Work Australia also provides additional ideas on how to prevent and respond to workplace bullying and conduct investigations. However, employers should ensure any procedures followed are appropriate for their business and compliance with the Guide does not guarantee a favourable Commission decision.

Whatever strategies are used by the Commission, the employer needs to be prepared in advance to deal with what will be another time, cost and resources impost on the business if it is to minimise the impact and prevalence of bullying complaints.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.