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Australia – Coming, Ready Or Not! The FWC Releases Its Anti-Bullying Case Management Model.

26 November, 2013

 

Legal News & Analysis – Asia Pacific – Australia – Labour & Employment

 

WHAT YOU NEED TO KNOW

 

  • From 1 January 2014 the Fair Work Commission has jurisdiction to deal with anti-bullying applications made by workers.
  • The FWC has now released details of the case management model that it will adopt to manage anti-bullying applications.
  • Key aspects of the case management model include:
    • In most cases, the FWC will serve an anti-bullying application on the alleged bully or bullies and this will generally occur 24 hours after the FWC serves the relevant employer / contractor.
    • Once an application is filed the FWC anti-bullying team will seek to contact all relevant parties to obtain sufficient information to enable the Panel Head to determine how the FWC should deal with the application. The Panel Head can progress an application in a variety of ways. This could occur by referral to a staff mediator to conduct a mediation or to investigate the circumstances of the application more fully, dealing with immediate jurisdictional issues or other preliminary issues themselves, or assigning the matter to a FWC Member for a particular purpose (eg mediation or determination).
    • Anti-bullying applications will not generally be the subject of mandatory conciliation conferences (unlike unfair dismissal applications). The FWC will only use conciliation or mediation where it considers this appropriate.
  • Employers should anticipate that the process may require them to disclose the findings of internal investigations into bullying complaints to the FWC and other parties to an anti-bullying proceeding.
  • Employers should be prepared to deal with an anti-bullying application and other claims (such as a general protections claim) made by the same worker arising from the same circumstances.

WHAT YOU NEED TO DO

 

  • Be aware that the FWC does not intend to deal with anti-bullying applications uniformly. Expect the FWC to vary the processing of each application depending on the nature of the complaint and the Member to whom it is allocated.
  • Consider whether relevant employees within your organisation are adequately trained to deal with the FWC’s process, including how to identify factors that may result in an application falling outside the FWC’s jurisdiction. Anticipate how to manage the workplace issues that may arise from an application.
  • Consider whether your organisation has sufficient resources to deal with anti-bullying applications or whether you will require external assistance, such as from external investigators and legal advisors.
  • Ensure your policies and procedures are updated to take account of a worker’s ability to make an anti-bullying application and that those updates are supported by refresher skills training of employees.
  • Before commencing an investigation into alleged workplace bullying, consider the risk of legal claims and the need for legal advice. This will raise a question of whether legal professional privilege may apply to investigation materials and any report. If so, consider the procedures and protocols to be put in place to establish and help maintain a claim of privilege over such material.

Earlier today the FWC released a summary of the case management model that it will adopt for the processing and resolution of anti-bullying applications filed by workers (Summary). While the approach has some similarities to the FWC’s approach to dealing with other types of applications, there are several novel aspects of which employers should be aware.


Today the FWC also released a draft anti-bullying Benchbook for public comment. Any interested person can submit comments on the draft Benchbook to the FWC until the end of December.


The Approach


The FWC will process each anti-bullying application as follows:


Step 1 – Application: the worker will need to complete and lodge an application using the appropriate form.


Step 2 – Gathering Information From The Applicant: before the FWC serves the application, the FWC will check the application for completeness and contact the applicant to confirm that the applicant intends to proceed with their application.


Step 3 – Service: the FWC will serve the application on the relevant employer and/or contractor. Generally, the FWC will serve the application on the alleged bully/bullies 24 hours after serving the employer/contractor. This will provide an opportunity for the employer/contractor to manage workplace issues that may result from the anti-bullying
proceedings being instituted. The Summary notes that in some circumstances, such as those involving physical abuse, it may not be appropriate to serve the alleged bully/bullies until the FWC has commenced dealing with the application. However, in all cases, the FWC will notify all relevant parties of the application and give them an opportunity to be heard before conducting any substantive hearings.


Step 4 – Gathering Information From The Respondent(s): following service, the FWC will contact the respondent(s) to confirm their details and obtain any further information required by the FWC to progress the application.


Step 5 – Response: the FWC will seek a written response from the employer/contractor. The FWC will also give the alleged bully/bullies an opportunity to respond to the application in writing.


Step 6 – Report to Panel Head: once the FWC has gathered all relevant information, the FWC’s anti-bullying team will report to the Panel Head on various issues including:

 

  • whether the matter involves jurisdictional issues;
  • the nature of the alleged conduct;
  • whether the application is likely to be suitable for mediation; and
  • the urgency of the application.

According to the Summary, any jurisdictional issues should be “isolated and dealt with first”.


The FWC will not make any decision during the information gathering stage. However, if the applicant decides to withdraw the application, the FWC will accept and process the withdrawal.


Step 7 – Allocation by the Panel Head: the Panel Head will decide whether to:

 

  • hear immediate jurisdictional and other preliminary issues;
  • assign the matter to a Member and if so for what purpose (eg mediation or determination); or
  • assign the matter to a staff mediator acting under delegated powers to conduct a mediation or to make further contact with the parties to more fully investigate the circumstances.

The Summary notes that there may be a need to prioritise an application where the circumstances indicate a significant risk to parties or working relationships.


Mediation: will not occur as a matter of course. It will only occur if the FWC considers it is appropriate in the circumstances. Mediation will be facilitated by a staff mediator or a FWC Member. It will be confidential (the identities of the parties will not be disclosed in the FWC’s public conference listings), conducted in private and voluntary. The emphasis of mediation will be on the resolution of issues to enable constructive and co-operative relationships to be resumed. The Summary specifically notes that the FWC will not promote or recommend monetary settlements.


Determination Of The Application By A FWC Member: if a matter is referred to a FWC Member for determination, it is generally expected that the Member will convene a preliminary conference with a view to understanding the issues involved and how best to approach the matter. Potential next steps may include:

 

  • attempting to resolve the matter by conciliation or mediation at the preliminary conference or at a resumed conference;
  • determining that other parties should be notified of the application or required to attend;
  • conducting an urgent hearing for interim orders (such as when the alleged bullying is particularly serious and the FWC clearly has jurisdiction to deal with the application); or
  • making directions for the application to be heard.

The normal appeals process will apply.


While the FWC must start to deal with an anti-bullying application within 14 days after it is made, this does not mean that applications will be determined in this timeframe. The FWC may commence to deal with an application by, for example, informing itself by making enquiries of the parties and/or requiring a party to provide additional information.


The Act requires that, when considering the terms of an order to be made in response to an anti-bullying application, the FWC must take account of any interim or final outcomes of an investigation undertaken into the matters the subject of the application. Whether FWC Members seek access to investigation reports in their entirety or to material created during the course of investigations is a matter that may be approached on a case by case basis.
The FWC will carefully monitor the operation of the case management model and will undertake reviews of it in July 2014 and again in early 2015.


What Does This Mean For Employers?


Employers need to be aware of the potential legal and practical issues arising from the FWC’s case management model. We have set out below a high level overview of some of the key issues.


1. Parallel Applications


The Act does not prevent a worker from making an anti-bullying application and other claims in respect of the same conduct, such as a general protections application. This means that employers should be ready to deal with parallel applications. An employer’s approach for responding to an anti-bullying application should also take into account the fact that the worker or the FWC can also refer the matter to a work health and safety regulator for investigation.


Employers should consider whether relevant employees would be capable of dealing with the work involved in defending multiple claims arising from the same alleged bullying conduct and whether those employees are aware of important differences between the jurisdictions (such as the fact that an investigation by a WHS regulator can lead to a criminal prosecution).


2. Investigations


As noted above, the FWC is required to take account of any interim or final outcomes of an investigation undertaken into the matters which are the subject of an anti-bullying application. This means that employers should expect to have to disclose that information to the FWC and other parties to an anti-bullying proceeding in some form. Before commencing an investigation of alleged bullying, employers should consider the possibility of being required to disclose investigation materials and the potential risks associated with this (for example, self-incrimination). Employers should seek legal advice about these matters and also about establishing and maintaining any legal professional privilege over the materials, (including what protocols and procedures the employer should adopt).


3. Case Management Approach Will Vary


Employers should not expect that all anti-bullying applications will be dealt with in the same manner. Different Members will have different ideas of how applications should be managed. In some circumstances, a Member may consider it appropriate to proceed to a merits hearing using a truncated timetable. This means that employers will need to ensure that they have flexible processes for responding to anti-bullying applications.


4. Mediation / Conciliation Should Not Be Expected


Employers should not assume that they will have the opportunity to attempt to resolve an anti-bullying application via a form of alternative dispute resolution. The FWC has stressed that there is no express obligation to attempt to mediate or conciliate anti-bullying applications and that these methods will only be used where appropriate.


5. Interim Orders


Under section 589(2) of the Act the FWC has the power to make an interim decision in relation to a matter before it. We expect that a Member would seek to use this power where an anti-bullying application makes allegations of very serious conduct which gives rise to a serious and/or immediate risk to the applicant’s health and safety. In these situations, employers will need to have the capacity to prepare quickly and to provide the FWC with information about the position on the ground and the status of any internal investigations.


6. “Go away” Money


The new anti-bullying provisions allow the FWC to make any order it considers appropriate except an order requiring the payment of a pecuniary amount. The FWC has stressed that it will not be promoting or recommending the resolution of anti-bullying applications on the basis of monetary payments. Despite this, we expect some workers will seek monetary compensation as part of any settlement. Some workers may file an anti-bullying application for leverage to obtain a payment for other claims that they may have on foot or are threatening, such as a general protections claim.


7. Workplace Management


An anti-bullying application is likely to give rise to immediate difficult workplace issues to manage. These may include what action to take in relation to the alleged bully/bullies and other workers potentially involved or affected, ensuring that nobody victimises the applicant for making the application, and managing relations with a contractor or other party.


What Employers Should Do


Employers should ensure that their processes and policies are up to date, and the relevant employees are well prepared to commence dealing with anti-bullying applications from 1 January 2014.


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For further information, please contact:

 

Marie-Claire Foley, Partner, Ashurst
[email protected]

 

Dominic Fleeton, Ashurst
[email protected]


Ashleigh Garrard, Ashurst
[email protected]


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