Anti-bullying provisions: too little, too late?

Analysis

Anti-bullying provisions: too little, too late?

The Fair Work Act’s anti-bullying provisions have been described as “preventive maintenance of employment and personal relationships”. But is that really the case?

The Fair Work Act’s anti-bullying provisions have been described as “preventive maintenance of employment and personal relationships”. But is that really the case?

The head of the Fair Work Commission’s Anti-Bullying Panel made the above claim in the Commission’s latest Annual Report  when summarising the first six months of operation of the provisions. During that time, almost 200 claims of bullying were “finalised” but only one resulted in a formal order being issued by the Commission.

Preventive maintenance v picking up the pieces


Whether the anti-bullying provisions can be described as “preventive maintenance” is debatable. For the Commission to consider an application for an anti-bullying order, the following situation must apply:
  • Conduct that could amount to bullying must have already occurred
  • The conduct must be “repeated”, ie not a one-off incident
  • There must be a threat that the bullying will continue or recur. This means that if the employee is no longer at the workplace (eg resigned, dismissed), he/she cannot lodge a claim because physical removal from the workplace means that a threat no longer exists. The employee may be able to pursue other remedies, eg for unfair dismissal, but not an anti-bullying order.
The “preventive maintenance” claim may be justifiable if the last of the above conditions exists, ie it is likely that bullying will continue/recur if no action is taken. But a potential threat of bullying when none has yet occurred does not come within the scope of the anti-bullying provisions. In the latter sense, the provisions do not “prevent” bullying, it must occur first before they can apply.

How effective is “reactive” legislation?


It can be argued that the anti-bullying provisions have a similar role to other employment-related legislation such as anti-discrimination and unfair dismissal provisions. These provisions exist to provide a remedy for employees AFTER they have been mistreated.

In order to make a claim of unlawful discrimination, an employee must already have been allegedly discriminated against. To make a claim of unfair dismissal, the employee must already have been dismissed. The remedies provided by these laws basically aim to restore the employee to the same situation he/she would have remained in had he/she not been unlawfully or unfairly treated.

Do the laws actually prevent discrimination and unfair dismissals? Despite (or maybe because of?) their existence, many claims by employees continue to be lodged. The vast majority are resolved (eg by a conciliated settlement between the parties) without going to a tribunal or court, but some claims still go the full distance and result in a finding that unlawful discrimination or unfair dismissal did occur, and a remedy for the employee is ordered.

The fact that a claim is resolved by conciliated settlement is not an acknowledgement that the employer’s conduct was wrong, nor that it was not wrong – no ruling either way has been made.

Based on the statistics published so far, it appears that a similar trend is emerging with the anti-bullying provisions, with almost all complaints being resolved in some fashion without the need for a Commission order. A difference is that the Commission cannot order payment of compensation to an employee; it has to find a remedy that allows the employment relationship to continue but with the threat of future bullying removed.

Proactive employment policies necessary


The above evidence indicates that unlawful discrimination and unfair dismissals have not been eradicated from workplaces. Nor are the Fair Work Act provisions likely to eradicate workplace bullying.

However, supporters of these types of legislation argue that they have been effective deterrents because they have forced employers to adopt more proactive employment practices, backed by training, that reduce the chances of unlawful conduct occurring in the first place.

Over the years, employers have improved their recruitment, selection, performance management, remuneration and termination of employment policies and practices to make them more objective, more professional, fairer and non-discriminatory.

Training, awareness and leadership development programs seek to ensure employees understand the policies/practices and have the capability to comply with them. A workplace culture that actively discourages unlawful and unfair conduct needs to underpin such actions.

It can be argued that without the potential sanctions for non-compliance with this legislation, some employers may have been less inclined to improve their policies and practices, so “bad” conduct would be more prevalent than it is now. This argument probably sums up the likely impact of the anti-bullying provisions – they will be an incentive for employers to focus attention on preventing bullying at the workplace, but without proactive steps by management/HR and a supportive organisation culture in the first place, they won’t prevent it by themselves.

OHS context


The need to be proactive is reinforced when the anti-bullying provisions are considered in the context of OHS legislation. The latter places a positive duty on employers to take steps to prevent or minimise risks to the health and safety of employees.

Bullying is within the scope of such a risk. Therefore, the focus must be on preventing bullying in the first place, not on preventing a recurrence and having a remedy available after it has already occurred.
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