Submission 167 Australian Council of Trade Unions Workplace Relations Framework Public inquiry
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- Bu səhifədəki naviqasiya:
- How is the system working ‘on the ground’
- Pros 700
- Has to be an immediate threat to the member
- Psychologically damaging to member to continue working with the bully
- Managing members’ (workers’) expectations
The LegislationThe legislation was effective from 1 January 2014. The impetus for the legislation arose from some recent high-profile cases and the findings of the House of Representatives Standing Committee on Education and Employment Inquiry into Bullying at Work which resulted in the Report Workplace Bullying: We Just Want it to Stop, Commonwealth of Australia (2012). Though the House of Representatives Inquiry did not make a specific recommendation around the FW Act, it examined the various legislative and regulatory frameworks which cover bullying and it occurred as the Commonwealth and (most of) the states and territories were adopting ‘harmonised’ work health and safety laws. The model Work Health and Safety Act 2011 includes duties to the psychological health of workers (s.4), and a draft Code of Practice on Workplace Bullying was developed by Safe Work Australia, but regrettably abandoned.691 The aim of the amendments to the FW Act is to stop workers being bullied at work and the legislation gives the FW Commission broad powers to make (non-pecuniary) orders to suit each case provided they have found:
The legislation mirrors state and federal workers’ compensation legislation in exempting matters which involve ‘reasonable management action carried out in a reasonable manner’.694 Indeed, several cases have arisen from the jurisdiction in relation to reasonable management action.695 Applications so farAccording to the FW Commission figures on the jurisdiction, 701 matters were lodged between 1 January 2014 and 31 December 2014.696 Of these, the Commission’s figures tell us that 149 (just over 21%) were withdrawn ‘early in the case management process’ and an additional 90 were withdrawn ‘prior to proceedings’. That is a total of 34% of applications lodged in 2014 did not make it to conciliation, mediation or hearing. The fears of some industrial parties that the FW Commission would be ‘flooded’ by applications have not been realised.697 Presumably the FW Commission’s 14 day ‘triage’ system has assisted in rooting out trivial or vexatious claims; the FW Commission’s figures note that all 701 applications were ‘dealt with’ within 14 days.698 Just 56 of the 701 cases lodged (8%) have resulted in a decision of the FW Commission. This reinforces our view that there is a strong preference within the FW Commission to settle anti-bullying claims.699 The FW Commission’s Annual Report of 2013/14 found that in the first 6 months of the jurisdiction, though there were 100,000 unique website hits relating to anti-bullying, and 3,500 telephone enquiries, the FW Commission processed only 343 applications. This suggests that interest in anti-bullying processes may be high but taking the steps to make an application is another matter. The total of 701 applications in 2014 suggests that interest by and large stayed the same over the first 12 months of the jurisdiction. We have no way of knowing if this will change. How is the system working ‘on the ground’?In 2014, the FW Commission had a 100% success rate in dealing with anti-bullying applications within 14 days. However, this is the stage at which the Commission’s case management team are in contact with the applicant, respondent and any representatives, and acting as a ‘triage’ for matters. It is the experience of some affiliates that the Commission’s workload does not allow expedient processes for dealing with applications once they are in the system, following this initial 14 day period. For example, an applicant represented by the National Tertiary Education Union (NTEU) lodged her application in March 2014. It was subject to 6-7 conciliation conferences and was only settled in early February 2015. In this case, the FW Commission issued directions and the worker’s evidence was prepared and submitted by the Union in May 2014. The FW Commission member who had carriage of the matter then took extended leave and the respondent did not follow directions that had been issued. A subsequent member of the FW Commission did not issue new directions so the respondent had the worker’s outline of submissions and 5 witness statements for many months as the matter was conciliated, whilst the applicant had no idea what material the respondent might seek to rely on. The approach in this case may have been an anomaly but the lengthy conciliation process raises two important matters. Firstly, (and unlike the unfair dismissal jurisdiction), applicants are presumably seeking to maintain their employment relationship whilst the anti-bullying matter is being dealt with. The longer the matter takes to resolve, the more difficult it must be to maintain a reasonable employment relationship. Secondly, a finding of bullying of a worker can only occur if there is a risk that the bullying will continue. To this end, the jurisdiction is what it purports to be – a means to have bullying stopped and not a punitive measure after the fact. Though an applicant may argue that lodging an anti-bullying application is a motivator to stop bullying in the interim, we have no way of knowing how far a settlement will go towards changing a workplace culture or stopping bullying behaviour over the long –term, and without an order, no way of enforcing this. One union organiser in a NSW “blue-collar” union has been involved in 8-9 applications in the anti-bullying jurisdiction. Based on her experiences representing members of the Rail, Tram and Bus Union (RTBU), Helen Bellette identified the ‘pros’ and ‘cons’ of the jurisdiction as she sees it, so far as including:
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