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New bullying laws should not ignore employers

By Simon Dewberry (view CV) and Andrew Stirling (view CV)

The first day of 2014 will see the beginning of a new regime to tackle the problem of workplace bullying.

Under the new laws, victims of workplace bullying will be able to apply directly to the Fair Work Commission (FWC) for an order that the bullying stop.

An initiative of the former Labor Federal Government, with bipartisan support, the new jurisdiction is without precedent globally. It will enable Australia to lead the world in anti-bullying legislation and is a step in the right direction for workers and employers alike.

But only if the process is right.

There is no doubting that bullying in the workplace is a serious issue, and Australia's new anti-bullying jurisdiction is a good idea, but there is significant – and justified – concern within corporate Australia about these new laws.

Alarm is understandable, considering the thousands of complaints each year made to safety and workers' compensation regulators relating to bullying. Then there is the uncertainty that comes from introducing new and untested laws without international precedent, and the broad discretion given to the FWC to make orders to stop future bullying.

However, there are some simple, non-legislative solutions that will ensure that everyone is protected.

First, employers should not have to invest resources in defending unmeritorious claims. This can be achieved by teaching workers what bullying is before they bring a claim.

Many workers will contact the Fair Work Ombudsman (FWO) before they decide to bring a bullying claim. It is very important that the FWO is involved in the plan to filter out unmeritorious claims.

For the jurisdiction to be a success, the FWO will need to train its telephone hotline employees about what constitutes bullying. Workers should be advised that their employer's internal processes (particularly informal processes) should be their first step in resolving any bullying complaint.

Also, any written information provided by FWO about the new regime will need to be carefully analysed and constructed to ensure that it also acts as a filter for unmeritorious claims.

Regardless of the material prepared by the FWO, there is significant concern within corporate Australia that the bullying jurisdiction will allow claims to be brought prematurely.

Secondly, the FWC's case management processes will need to be effective in achieving the objectives of the new jurisdiction. The FWC has now released a summary of its proposed case management model.

The FWC's commitment to gather information before mediating or hearing a claim will give employers an opportunity to address the worker's concerns without assistance from the FWC. In our experience, such resolution is more likely to achieve longer-term results without clogging up the FWC.

It remains to be seen whether the FWC's proposal to use the information it gathers to give preliminary consideration to claims will have the effect of limiting the number of claims continuing to mediation or a hearing. Similar filters have not worked in the past, with Commissioners reluctant to bring an early end to claims even where they have no realistic prospect of success.

To keep the FWC free to hear the most serious workplace bullying claims, processes such as mediation by trained FWC staff members should prove useful.

It's crucial that this process works for all parties involved if it is to fulfil the aim of curbing workplace bullying.

Simon Dewberry is a Partner, and Andrew Stirling is a Senior Associate, in the Workplace Relations group at Allens.

An edited version of this opinion piece appeared in SmartCompany on 22 November 2013.

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