Submission 167 Australian Council of Trade Unions Workplace Relations Framework Public inquiry

Overlap

The unique aspect of the anti-bullying jurisdiction would seem to be its capacity to provide enforceable orders to have workplace bullying stopped. However, some 14 months into the operation of the jurisdiction just one such order has been made.

The jurisdiction may, over time, act as an authoritative deterrent to workplace bullying. The process of an applicant having their story heard and seeking to resolve a bullying issue before a FW Commission member, should in the best cases assist in changing workplace management practices and cultures.

Affiliates’ experiences suggest though that the FW Commission is seeking to resolve applications via lengthy conciliation processes. In some instances, these take many months and if they don’t result in an enforceable order, we may well ask what can be offered by the legislation that can’t be resolved via best practice processes at the workplace (where they exist). For example, in Higher Education, University policies and enterprise agreements often include rigorous processes for resolving grievances, including claims of bullying. On paper, these appear democratic as workers are not only entitled to representation but have a union nominee on an investigation, grievance or misconduct committee.

However, as with many modern workplaces a Human Resources department is often the central and ‘controlling’ source of progress on investigations and this may contaminate outcomes at worst and, at best, lead to less than transparent processes.. In addition, the layers of escalation involved lead to lengthy and stressful delays. For this reason, a Union affiliate such as the National Tertiary Education Union – who represent workers in Universities- had hopes that the FW Commission jurisdiction would provide for quick resolution of bullying matters; this has not been their experience and without additional resources, it is difficult to know how the FW Commission can resolve these matters more efficiently.

Another unique aspect of the jurisdiction is its potential to ensure that the employment relationship is maintained, in the hope that the bullying will stop. It is hoped that the FW Commission could deal with anti-bullying applications quickly and before the effects of the psychological hazard posed by bullying behaviour have rendered an employee injured or incapacitated for work. To this end, the jurisdiction is preferable to state or federal workers’ compensation schemes which address injury or incapacity arising from workplace injury and provide financial compensation. Again, however the length of time it takes the FW Commission to deal with an individual case will contribute to the health and safety risk continuing. In serious cases, individual employees may be well advised to lodge both an anti-bullying and workers’ compensation claim.

Clearly there is consistency between the FWC jurisdiction and the state and Commonwealth workers’ compensation jurisdictions in terms of the legislative definitions of ‘bullying” (repeated unreasonable behaviour etc) and the respective legislations’ exemptions for ‘reasonable management/administrative action’. This makes sense and should provide some level of faith and certainty for employers, employees and their representatives.

The Explanatory Memorandum to the anti-bullying amendments suggests the FW Commission can refer matters relating to an anti-bullying application to the relevant health and safety regulator.⁷⁰¹ Such a referral could serve to trigger more lasting change within a workplace, through the intervention of the regulator, than might otherwise be the case via an individual anti-bullying application. It is envisaged, for example, that the FW Commission may act in this way when concerned about a wide-spread and entrenched culture of poor management and bullying which puts many employees at risk.

It should be noted that aside from a prohibition on pecuniary orders, the intent and effect of the legislation is that the FW Commission has wide powers to make any order it deems appropriate [ss.789FF]. It is foreseeable that the FW Commission could Order a process of long-term monitoring of policies, practices and training within a workplace. If the FW Commission could call on the expertise of investigatory and other staff from a health and safety regulator this could enhance the reach and effectiveness of the jurisdiction.

Investigations

The FW Commission is obliged to consider the outcomes of any internal investigations within the workplace subject to an anti-bullying application [ss.789FF(2)]. However, it is not a requirement that a workplace investigation has occurred prior to lodging an anti-bullying application with FWC. This makes sense and it means that the FWC is a genuine option in workplaces with inadequate bullying policies and procedures or without procedures at all. As discussed, having a member of the FW Commission address the details of an anti-bullying application must surely lend the process authority for employees and keep employers on their toes”

Workplace investigations of bullying matters are often flawed and one would hope that where the FW Commission has identified a flawed investigation, they can attend to this via their own examination of the facts and, potentially, an Order addressing inadequacies in workplace processes.⁷⁰² There is no reason why the FW Commission’s orders need only address the facts of an individual case; ss789FF(2)(c) enables the FW Commission to consider “any matters that the Fair Work Commission considers relevant”. Over time, it would be reassuring to see orders of a nature which will affect real workplace change.

21	Accessing Workplaces

There has been a longstanding consensus in Australian industrial relations that employees are entitled to the benefit of union representation in the workplace. The acceptance of this notion follows from the broader proposition, enshrined in fundamental and internationally accepted labour Conventions and in domestic legislation, that employees should have the freedom to associate - to form and have the benefit of, representative organisations which are capable of defending and promoting their common industrial interests.

Union representation in the workplace can take a variety of forms. It can include ongoing representation by employees elected by their fellow union members, formal representation about industrial issues in an external forum or tribunal, or even advice and information provided to union members other than through the physical attendance of union officials at a workplace. However the capacity of workers to have union officials attend in person and enter a workplace for industrial purposes has been a critically important aspect of representative rights and a central tenet of Australian industrial law and practice for many decades.

Properly understood, the physical access of union representatives to a workplace is not so much a ‘right of entry’ which resides in a union or its officials but a ‘right to representation’ that belongs to employees. It is a recognition of the fact that freedom of association is more than an abstract concept. For freedom of association to have substance, it must include the conferral of rights which are of meaningful benefit for those who enjoy the freedom. These rights must facilitate the ongoing existence of freedom of association.

Freedom of association and the right of employees to have their representative organisations act in their interests also requires an effective line of communication between a union and the employees seeking representation. It is only when this is in place that employees can benefit from unions that function responsively and ultimately, democratically in a legitimate institutional role to uphold and advance the first principles discussed in Chapter 1.

Whilst the FW Act recognises the importance of freedom of association and representative rights⁷⁰³, the current provisions governing employee access to union representation in the workplace fall far short of an acceptable standard and have shown to be little more than a legal quagmire that does as much to discourage and frustrate access as to facilitate it.