Fair Work Commission will be “swamped” by marginal bullying claims

The Fair Work Commission is at risk of being swamped by a flood of bullying complaints should proposed legislation be passed by the Senate, according to an employment law expert.

University of Adelaide law professor Andrew Stewart helped draft the Fair Work Act and told SmartCompany should the bill be passed, the FWC could be forced to deal with thousands of complaints which aren’t true bullying cases.

“The potential problem I’ve heard from a lot of practitioners is that it becomes an outlet for anyone who is concerned about how they’re being performance managed.

“The situation is where a performance management process results in an employee feeling like they are being treated unfairly and this can result in them being away from work and then putting in a claim for work induced stress. In some cases this is a genuine reaction, but in other cases it is just a convenient tactic,” he says.

The Fair Work amendment bill was passed by the lower house last week when independent MP Tony Windsor abstained from voting. The bill proposes to change the current act to have the FWC deal with bullying complaints and give unions right of entry.

Amendments to the original bill have seen its scheduled introduction delayed until January 1, 2014, but rejected the Coalition’s proposal that workers should have to take their claims to another body before they can be addressed by the FWC.

Stewart says neither party has taken the correct approach to the current bill, although he says the Coalition’s policy was closer to the mark.

“The new legislation should have some mechanism for screening complaints and for the possibility of the commission declining to act if they feel a complaint should be dealt with through another mechanism.
“Other mechanisms include those already in place such as dispute resolution clauses or through a work health and safety claim. There are already a lot of ways in which a lot of these claims can be addressed,” he says.

FWC general manager Bernadette O’Neill told a Senate estimates hearing last week the commission expects to receive around 3500 bullying complaints a year if the legislation is enacted. This equates to almost 10% of the FWC’s total complaints.

In the May budget, the commission was given an extra $21.4 million to crack down on workplace bullying.

Stewart says the commission’s resources should be devoted to the most serious cases, not bullying claims which are less serious in nature.

“We’re all aware of the really serious situations, such as the Brodie Panlock case, where particularly young workers can find themselves in a situation where they’re being physically or verbally abused and this can have tragic consequences. I don’t think there is anyone who thinks this is not a problem.

“But there is a spectrum and this includes situations where someone feels they’re being bullied in the course of an ordinary process of performance management. The commission will have to put a lot of time into sorting out the really serious cases from the marginal cases,” he says.

Stewart says without some kind of mechanism to separate the cases, the danger resides in the commission being swamped by marginal cases.

“I’m not convinced of the Coalition’s proposition, but their idea was a sound one.

“Unfortunately, they also decided to do some grandstanding on union bullying as well and said it should be amended to specifically apply to union officials, but there are already other laws which deal with this type of inappropriate behaviour,” he says.

The bill also includes a union right of entry proposal which will allow union officials to meet with workers in their lunchrooms during breaks.
When the bill was passed in the lower house last week, Workplace Relations Minister Bill Shorten said it reflected the Labor Party priorities of “productive, collaborative, innovative, profitable, safe and cooperative workplaces”.