Early days for new law but lawyers say lessons can be learnt in initial decisions
The transport and logistics sector fails to figure highly in the first three months of the anti-bullying legal regime but legal experts have noted early Fair Work Commission (FWC) thinking may or may not be close to home.
The doubt arises as the subjects of cases tend to be anonymous.
Only four of the 151 anti-bullying applications lodged with the Commission were in the section headed ‘road transport industry’, though there was one for ‘postal services’.
Of the 43 sectors measured, 22 had one lodgement and 16 were in single figures.
Those in double figures were clerical 23, retail 13, health and welfare 11 and education 10.
Meanwhile, Corrs Chambers Westgarth lawyers looking at one of the first Commission cases say it gives detailed insights into the types of conduct that will – and won’t – constitute bullying under Part 6-4B of the Fair Work Act 2009 (FW Act), along with the concept of “reasonable management action” in the context of alleged bullying.
The case, in which the complainants are anonymous, centres on a Ms ‘SB’, a delivery support team leader who manages a team of delivery support officers (DSOs).
Complicating SB’s application for an order to stop bullying against two DSOs, ‘NP’ and ‘CC’, and her organisation, were complaints by the pair to management about SB.
SB had claimed ongoing harassment and a lack of support from management who had not taken steps to halt ‘unfounded claims’ when NPs had been unsubstantiated – though CC’s had been found partially justified.
Section 789FD(1) of the FW Act states that a worker is bullied at work when: another individual or group of individuals “repeatedly behaves unreasonably towards the worker”; and “that behaviour creates a risk to health and safety”.
While superiors can be bullied by subordinates, FWC anti-bullying panel head Peter Hampton found that the behaviour and management response had not risked SB’s health.
On the question of whether management response had been “reasonable”, the lawyers say the findings show:
The test is whether management action was reasonable, not whether it could have been undertaken in a manner that was more reasonable; nor whether the applicant perceived it to be unreasonable.
Management actions do not need to be perfect or ideal to be considered reasonable. However, they do need to be lawful and rational.
A course of action may be reasonable, even if particular steps are not.
“In light of the decision, employers should revisit their bullying guidelines, policies and procedures,” they say.
“Although management actions do not have to be perfect to be considered reasonable, bullying complaints should be managed and investigated in a way that is thorough, transparent and responsive to any concerns that have been raised.”
They also note that Commissioner Hampton” highlighted the need for the parties in this case to deal with problems in their ongoing relationship and ‘some cultural, communication and management issues in this workplace that should be addressed by senior management’.”
The Commission’s quarterly report shows that in the three months to March 31, 151 anti-bullying applications were lodged.
- 32 were withdrawn (in early case management, before conference/hearing, or after conference/hearing but before decision)
- 16 were resolved during the course of proceedings
- Eight were finalised by a decision.
- Of the eight that went to decision
- Seven applications were dismissed
- One order was issued because the worker was at risk of continued bullying at work
- 133 applications were lodged by employees, four by a contractor/subcontractor, three by an employee of a labour hire company, one by an apprentice/trainee and one by a volunteer.
- 55 per cent of applications involved a business with 100+ employees, 6 per cent a business with 51-100 employees, 24 per cent a business with 15-50 employees, and 15 per cent a business with less than 15 employees
- 109 workers alleged their manager bullied them, 27 alleged bullying by another worker, 20 alleged bullying by a group of workers, and three alleged bullying by a subordinate.