Following the former Government’s federal inquiry into bullying, the resulting recommendations by the Standing Committee are soon set to come into force.
The report, Workplace bullying: We just want it to stop, included measures to ensure victims of bullying would have right of recourse through an adjudicative process.
From January 1 2014, the Fair Work Act will be amended which will for the first time give employees an avenue to take their workplace-bullying claim directly to the Fair Work Commission (FWC). It is stipulated by the Act that the FWC must deal with the claim within 14 days.
Previously the avenues for making a bullying complaint were to use the employer’s own internal process, or to make a workplace health and safety, or workers’ compensation claim.
Murray Procter, a partner at DLA Piper, told Dynamic Business that the law firm is currently working with clients who are concerned that this new process may lead to a scenario of “performance management by Commission”.
Essentially, that employees who are being performance managed could delay the process by lodging a bullying claim and forcing the Fair Work Commission to intervene.
“What I’m hearing is that there’s some real concern around management of performance. So instances where employees who might want to resist being performance managed, may say they’re being micro-managed, or harassed by their supervisor, or their manager, and will lodge a claim in the Fair Work Commission, and you get to a stage where it’s effectively performance management by commission,” Procter said.
“[Under the Act] there is an exclusion from bullying, if the conduct is reasonable management action, taken in a reasonable way, then it’s not bullying. So it’s then up to the Commission to make that decision on whether it’s reasonable management action, taken in a reasonable way,” Procter added.
For this reason, it is paramount that employers ensure they are methodical in recording the incidents and reasoning behind why an employee has been put on a performance management plan.
In the event of an employee making a bullying claim, the Commission will then trawl through the material submitted by both parties, and make a judgment as to whether the claim is a legitimate case of bullying.
With the change of Government, there remains a possibility that there could be changes made to the incoming system.
Parliament will resume on the 12th of November, however Procter believes it is unlikely that the new Government will make any changes to the laws before 1 January.
“Leading into the election, the Coalition said broadly they supported the position of the introduction of the laws, but that if they got into power they would tweak the law a little bit to say that prior to an employee approaching the Fair Work Commission, an employee would need to have made an attempt to resolve their grievance with some other independent body, other than the Fair Work Commission,” Procter said.
“So there’s a question mark over whether that barrier will be there – because at the moment it looks like the employee can simply just bring the complaint to the Fair Work Commission, and the FWC has to intervene within 14 days,” he added.