New Anti - Bullying Jurisdiction

Transcription

1 New Anti - Bullying Jurisdiction Presenter: Commissioner Peter Hampton IR Society of WA - 22 November 2013

2 Commonwealth of Australia Fair Work Commission 2

3 Outline Observations on the new jurisdiction The provisions of the Amending Act What is bullying What workplaces are covered Who can apply and how What is the role of the FWC The case management approach of the Commission Note: 1 January 2014 commencement Commonwealth of Australia Fair Work Commission 3

4 I am here to help BUT! Cannot provide advice not commenting on policy Information is general and it is not possible to be definitive new provisions and no precedents There is no substitute for reading the Act itself and taking legal/professional advice The views are my own and not to be taken to be those of the FWC Members are all individuals Commonwealth of Australia Fair Work Commission 4

5 Observations on the new jurisdiction Broad scope of applicants (workers) and other parties (individuals) Broad coverage - Commonwealth employment, constitutional corps, territories etc) with State govt, non-corporate and ADF exclusions Multiple legal and practical relationships and parties Bullying has a particular meaning: Unreasonable behaviour by an individual(s) at work Not reasonable management action taken in a reasonable manner Repeated Risk to health and safety Must be a risk of bullying continuing (in the relevant relationship at time of considering an order) Commonwealth of Australia Fair Work Commission 5

6 Observations on the new jurisdiction (cont.) The role of the FWC (and the remedy) is preventative (not remedial, punitive or compensatory) Large numbers of enquiries and applications many not suitable Recognise some will be difficult parties, complex behaviours and issues and on-going employment/contractual relationships Statutory requirement to commence process quickly Statutory functions include the promotion of productive and cooperative workplaces Requires: Early assessment of the applications Some initial engagement with parties Streaming and prioritisation Case by case approach mediation/conciliation only where appropriate Commonwealth of Australia Fair Work Commission 6

7 The provisions of the Act What is bullying? S.789FD(1) and (2) When is a worker bullied at work? A worker is bullied if: While at work in a constitutionally-covered business; An individual or group repeatedly behaves unreasonably towards the worker or a group of workers; and The behaviour creates a risk to health and safety. Bullying does not include reasonable management action carried out in a reasonable manner Commonwealth of Australia Fair Work Commission 7

8 The provisions of the Act (cont.) What workplaces are covered? S.789FD(3) When is a worker bullied at work? Constitutionally-covered business if: A person conducts a business or undertaking within the meaning of the WHS Act 2011 and is either: A constitutional corporation (trading or financial); The Commonwealth or a Commonwealth authority; A body corporate incorporated in a Territory; The business of undertaking is conducted principally in a Territory or a Commonwealth place. Commonwealth of Australia Fair Work Commission 8

9 The provisions of the Act (cont.) ADF and national security exemptions S.789FI This part not to prejudice Australia s defence, national security etc. Nothing requires or permits actions that could reasonably be expected to be prejudicial to: Defence National Security Covert and international operations of the AFP (s.12e WHS Act) Ss.789FJ-FL Declarations that FW Act provisions do not apply Commonwealth of Australia Fair Work Commission 9

10 The provisions of the Act (cont.) Who may apply and how? S.789FC Application for an FWC order to stop bullying A worker who reasonably believes he or she had been bullied at work Worker defined in WHS Act 2011 and means in effect: An individual who performs work in any capacity including as an employee, a contractor, a subcontractor, an outworker, an apprentice, trainee, student on work experience or a volunteer (but not a member of the ADF) Make an application (no time limit) and pay the fee Can have parallel actions under WHS laws (s.789fh) and probably other FW Act proceedings Commonwealth of Australia Fair Work Commission 10

11 The provisions of the Act (cont.) The role of the FWC S.789FE FWC to deal with promptly S.789FF FWC may make orders to stop bullying Start dealing within 14 days (inform itself) May make an order to stop bullying if: An application made; and Satisfied that worker(s) has been bullied and there is a risk will continue The order is directed to prevent the worker from being bullied but cannot include pecuniary amount Must consider any known outcomes of WHS investigation, internal grievance or other procedures and any other relevant matter Commonwealth of Australia Fair Work Commission 11

12 The provisions of the Act (cont.) Focus of any order is on stopping the conduct and enabling normal working relationships to resume Explanatory Memorandum provides examples of the type of orders the Commission may consider: Stop specified behaviour Employer to regularly monitor behaviours Comply with bullying policy Provide information and additional support and training to workers Review employer s workplace bullying policy Interpersonal mediation Keep the direct parties apart? Commonwealth of Australia Fair Work Commission 12

13 How will the FWC deal with these applications? Information about jurisdiction and role to the public Application smart form with paper-based alternative Service upon employers and individuals Responses Triage Confirm information on application and desire to proceed Identify obvious jurisdictional problems Information on process to all parties Gain information for a preliminary administrative report made provided to Panel Head who will asses and allocate Commonwealth of Australia Fair Work Commission 13

14 How will the FWC deal with these applications? (cont.) Panel Head to decide to how and when to be dealt with: Mediation (only where appropriate - by Members or specifically trained mediators on staff (subject to final President s delegations if made) promote safe, productive working relationships Assigned to Member to hear as they see fit: Appeals Preliminary conference (likely) Conciliation Urgent hearing for interim or other orders Jurisdictional determination Merit and remedy hearing (appropriate to the circumstances) Reference to WHS authorities Commonwealth of Australia Fair Work Commission 14

15 FWC preparations Liaison with WHS authorities, anti-discrimination bodies, academics, peak organisations and advocates Case Management Model now finalised and published Draft Benchbook published Extensive training for Members and Staff Preparation of guides and other information Presentations to professional bodies, organisations and representatives Rules and forms about to be released Commonwealth of Australia Fair Work Commission 15

16 Discussion