Update on the Australian anti-bullying regime

In November 2013, we wrote about the introduction of a new anti-bullying jurisdiction which allows a worker who believes that they have been bullied at work to apply to the Australian Fair Work Commission for an order to stop the bullying. The regime has now been in place for over two years so it seems timely to provide an update on how it has operated in practice.

Early fears of a flood of applications under the new provisions have not been realised, nor have there been many substantive bullying orders. According to the Commission's quarterly reports, between 1 January 2014 and 31 December 2015, approximately 1,400 applications were made - fewer than 60 per month. Of these, over one-third were withdrawn early and another third were resolved or withdrawn prior to a substantive decision. Around 100 applications have culminated in a final decision and, of those, only seven have resulted in a stop bullying order. Unsurprisingly, the majority of complaints alleged that the unreasonable behaviour was engaged in by the worker's manager (rather than another worker). There have also been some complaints involving "upward bullying".

The Commission reports that common outcomes have included:

• undertakings about future behaviour;
• clarification of roles;
• the employer to review or establish anti-bullying policies;
• the provision of information, additional support or training to employees;
• conditions on the worker's return to work; and
• relocation of one or more employees.

Again, contrary to earlier concerns, a wide range of options for resolution has emerged, despite the fact that the Commission is not permitted to make orders requiring the payment of compensation and has made clear in its case management notes that it will not promote or recommend monetary settlements. Nevertheless, we assume that some settlements do include a monetary component.

The Commission also reports that other factors that may have led to early withdrawal of an application include the identification of jurisdictional barriers, the preventative focus of potential orders, a decision to follow an alternative means of resolution, and the prompt resolution of allegations within the workplace subsequent to service of an application.

The developing case law has reflected the key aspects of the Commission's jurisdiction to make stop bullying orders.

Firstly, the bullying conduct must be at "at work". Consistent with developments in related jurisdictions, this is not limited to the physical workplace. Instead, it encompasses both the performance of work at any time or location, and circumstances where the worker is engaged in another employer-sanctioned activity. As in other areas of employment law, the use of social media is increasingly caught, even where offending posts were not made at work, on the basis that the behaviour continued so long as the posts remained online.

Secondly, stop bullying orders can only be directed at future conduct and will not be made in circumstances where either the complainant or the respondent is no longer employed at the workplace. It has been found that the absence of an ongoing employment relationship meant that there was no risk that the applicant would continue to be bullied at work and no ongoing risk to health and safety.

Finally, there is no power to make orders where the alleged conduct is a reasonable management action carried out in a reasonable manner. Importantly, the Commission has noted that management actions do not need to be perfect or ideal to be considered reasonable. Whether management actions are reasonable includes an objective assessment of:

• the circumstances that led to, and created the need for, the management action to be taken;
• the circumstances while the management action was being taken;
• the consequences that flowed from the management action; and
• the attributes and circumstances of the situation including the emotional and psychological health of the worker.

The Productivity Commission recently reviewed the anti-bullying jurisdiction but did not make any recommendations, noting that it is too early to draw conclusions about the effectiveness of the provisions.

While the number of applications under the anti-bullying provisions is lower than expected, the number is still substantial. The great majority of matters are withdrawn or settled. As yet, there has been no comprehensive assessment of the impact of the legislation on
the frequency and severity of workplace bullying. Nor has an attempt been made to estimate the proportion of claims which do not have a genuine basis.

A post-implementation independent review of the performance of the anti-bullying jurisdiction is underway, with outcomes expected to be published in the first half of 2016.

Please click on the links below for the other articles in the May 2016 edition of Ashurst's World@Work

• Misconduct by social media - a global perspective
• German employees who use their own devices for work - problems and solutions
• Under pressure? Japan legislates mandatory stress checks
• Mandatory gender pay reporting in the UK for large employers
• French Supreme Court allows claim by trade union for employer's data protection breach
• The implications of Brexit for employment law in the UK