New benchbook and case management model released
As detailed in previous newsletters, the Federal Government has introduced new anti-bullying laws which will come into effect as of 1 January 2014.
In order to assist with this new jurisdiction, the Fair Work Commission has released a benchbook to assist parties in lodging or responding to anti-bullying applications, which has been released as a draft for public consultation. Public comments can be submitted up until the end of December 2013.
The Commission has also released a case management model which summarises the procedures and associated functions to be adopted for the implementation of the new laws.
Because this jurisdiction has not yet commenced, the benchbook is based on decisions from other jurisdictions (primarily workers compensation, negligence and work, health and safety cases). The intention is to update the benchbook as appropriate once Australian cases are issued.
The benchbook sets out the basic mechanics of the new legislative provisions, including definitions of who is covered, what constitutes bullying behaviour, the process involved, the orders that can be made, the issue of costs and the appeal process.
Usefully, the benchbook also sets out a number of cases which demonstrate examples of conduct which have been found to constitute bullying. These cases derive from negligence and breach of contract claims, as well as work health and safety prosecutions.
The concept of ‘reasonable management action’ is also explored, with a summary of examples of conduct which may fall within this category based on prior case law (mostly based on workers compensation cases).
Case management model
The case management model sets out a number of comments about the new laws and the Commission’s role in managing the new jurisdiction. Some of the more pertinent comments include the following:
- Anti-bullying orders cannot be made by the Commission in respect of former workers (eg workers who have left their employment). This is because an order can only be made if there is a risk of continuing bullying to the individual.
- The Commission states that whilst it is difficult to predict the number of anti-bullying applications that will be made, it expects that there will be a significant number.
- The legislation requires that the Commission start dealing with an application within 14 days of it being lodged. This may occur by the Commission informing itself through inquiries or requiring the provision of information from the parties.
- Cases which indicate a significant risk to parties or working relationships will be prioritised.
In terms of process, the following steps will apply:
- Once an application is lodged, it will be checked by the Commission and served on the employer/principal in order to obtain a response.
- The individual whose conduct has prompted the application will also be given a chance to respond.
- The ‘anti-bullying team’ within the Commission will then prepare a report which outlines whether the matter involves any potential jurisdictional issues, the nature of the alleged conduct, whether it is suitable for mediation, the degree of urgency and any other relevant factors. This report is provided to the Panel Head who will make a decision as to the assignment of the application.
- The Panel Head then decides whether the matter will be assigned to a member and for what purpose (eg mediation or determination). The Panel Head may decide to hear and determine immediate preliminary issues (such as jurisdictional issues). The matter may also be assigned to a staff mediator if appropriate.
- Mediation will be voluntary and confidential, and will only be proposed in appropriate cases. Conciliation is another possibility, and parties may be compelled to attend a conciliation conference. Mediation and conciliation conferences will usually be conducted in private, and the identity of parties will not be disclosed at this stage of the process.
- Where applications do not settle following mediation or conciliation, they will be determined by an individual member of the Commission, unless the President decides to convene a Full Bench in relation to a specific matter.
- Hearings will be conducted in public, unless orders have been made for private hearings. Members do however have some discretion as to the level of detail that is disclosed in their decisions concerns the names of the parties and the evidence.
Workdynamic Australia specialises in conducting investigations into matters such as workplace bullying.
This article was written by Lauren Barel, Director and Principal of Workdynamic Australia. The information in this article is for information purposes only and does not constitute legal advice. You should obtain specific advice relevant to your circumstances.