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Towards a dignity of work without
the regulation – a critique of the
regulatory approach to anti-
bullying
Aaron Lane
Rese...
Outline of presentation
• Reviewing the new anti-bullying
jurisdiction of the Fair Work Commission
• Overview of existing ...
New anti-bullying jurisdiction of the
Fair Work Commission
• Federal Parliamentary Inquiry into Workplace Bulling in 2012
...
New anti-bullying jurisdiction of the
Fair Work Commission
Part 6-4B Fair Work Act 2009 – Workers bullied at work
• A ‘wor...
New anti-bullying jurisdiction of the
Fair Work Commission
• FWC can make ‘any orders it considers appropriate to prevent
...
New anti-bullying jurisdiction of the
Fair Work Commission
Perceived issues:
• Existing State and Commonwealth laws
• Defi...
FWC: First Quarter Statistics
Source: Fair Work Commission, Anti-bullying report Jan-March 2014, 23 April 2014
Total appli...
FWC: First Quarter Statistics
Decisions (Current 20 May
2014)
15
Dismissed per section 587 9
Dismissed as not ‘bullied at
...
FWC: First Quarter Statistics
Type of Applicant (where
known)
N:
142
%
Employee 133 94
Labour hire 3 2
Contractor or subco...
Review of cases
• Jurisdictional cases:
– Balthazaar v Department of Human Services
(Cth) [2014] FWC 2076
– McInnes [2014]...
Example of order:
Applicant v Respondent
PR548852
(21 March 2014)
Existing anti-bulling laws
There are two main categories of pre-
existing anti-bullying laws at Commonwealth
and State lev...
Existing anti-bulling laws:
Anti-discrimination
Anti-discrimination legislation (non-exhaustive):
• Age Discrimination Act...
Existing anti-bulling laws:
Anti-discrimination
Example of protected attributes:
• Age, breastfeeding, employment activity...
Existing anti-bulling laws:
Anti-discrimination
Individual recourse
• Commonwealth:
– Complaint to AHRC  Conciliation 
F...
Existing anti-bullying laws: WHS
Workplace Health and Safety legislation:
• Occupational Health and Safety Act 1984 (WA)
•...
Existing anti-bullying laws: WHS
Primary duty of employers for Workplace Health and Safety:
A person conducting a business...
Existing anti-bullying laws: WHS
Duties also extend to:
• Self-employed (section 19(5))
• Officers (section 27)
• Workers ...
Existing anti-bullying laws: WHS
While at work, a worker must:
(a) take reasonable care for his or her own health and safe...
Existing anti-bullying laws: WHS
Recourse
• Offences under the WHS legislation
• Regulators have powers of inspection,
pow...
Existing anti-bullying laws: WHS
Additional laws in Victoria: ‘Brodies law’
• Commenced in June 2011
• Serious bullying a ...
Scope for deregulation
• Repeal FWC jurisdiction
– End the litigious approach to anti-bullying
– Don’t risk bullying becom...
Aaron Lane
Research Fellow | Institute of Public Affairs
www.ipa.org.au
Aaron Lane - Institute of Public Affairs - Towards a dignity of work without the regulation – a critique of the regulatory...
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Aaron Lane - Institute of Public Affairs - Towards a dignity of work without the regulation – a critique of the regulatory approach to anti-bullying

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Aaron Lane delivered the presentation at 2014 Workplace Bullying Conference.

The Workplace Bullying Conference 2014 focused on the effects of the legislative changes to date and on implementing practical policies and programs for bullying prevention.

For more information about the event, please visit: http://www.informa.com.au/workplacebullyingevent14

Published in: Health & Medicine, Career
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Transcript of "Aaron Lane - Institute of Public Affairs - Towards a dignity of work without the regulation – a critique of the regulatory approach to anti-bullying"

  1. 1. Towards a dignity of work without the regulation – a critique of the regulatory approach to anti- bullying Aaron Lane Research Fellow | Institute of Public Affairs
  2. 2. Outline of presentation • Reviewing the new anti-bullying jurisdiction of the Fair Work Commission • Overview of existing anti-bullying laws at the Commonwealth and State levels • Discussing scope for deregulation and policy options to empower individuals in the workplace
  3. 3. New anti-bullying jurisdiction of the Fair Work Commission • Federal Parliamentary Inquiry into Workplace Bulling in 2012 House of Representatives Standing Committee on Education and Employment Report ‘We just want it to stop’ tabled 26 November 2012 • Fair Work Amendment Bill 2014 introduced into the House of Representatives in March 2013 “In response to recommendations of the House of Representatives Standing Committee on Education and Employment inquiry into bullying, the bill introduces a long-overdue remedy for victims being bullied at work to seek a timely recourse through the Fair Work Commission.” The Hon. Bill Shorten MP, then Minister for Employment and Workplace Relations, 21 March 2013. • Senate Committee Inquiry recommended passage of the Bill in May 2013 • Bill passed both Houses of Parliament on 27 June 2013
  4. 4. New anti-bullying jurisdiction of the Fair Work Commission Part 6-4B Fair Work Act 2009 – Workers bullied at work • A ‘worker’ who ‘reasonably believes’ that he or she has been ‘bullied at work’ may apply to the FWC for a stop bullying order (Section 789FC(1)) • ‘Worker’ includes employee, contractor, subcontractor, outworker, apprentice, trainee, work experience student and volunteer (Section 789FC(2)) • A worker is ‘bullied at work’ if: – The worker is at work in a ‘constitutionally covered business’ – An individual, or group of individuals, repeatedly behaves unreasonably towards the worker; and – That behaviour creates a risk to health and safety (Section 789FD(1))
  5. 5. New anti-bullying jurisdiction of the Fair Work Commission • FWC can make ‘any orders it considers appropriate to prevent the worker being bullied at work by the individual or group’ (section 789FF(1)) • Orders cannot require payment of a pecuniary amount (section 789FF(1)) • FWC must consider: – Final or interim outcomes of investigations being undertaken by another body; – Any procedures available to the worker to resolve grievances or disputes; – Final or interim outcomes arising out of any procedures available to the worker to resolve grievances or disputes; and – Any matters that the FWC considers relevant. (Section 789FF(2))
  6. 6. New anti-bullying jurisdiction of the Fair Work Commission Perceived issues: • Existing State and Commonwealth laws • Definition of ‘worker’ not used elsewhere in the Fair Work Act • No cost incentives • Provisions are vague – e.g. ‘behaves unreasonably’ • No requirement to report bullying prior to bringing an application
  7. 7. FWC: First Quarter Statistics Source: Fair Work Commission, Anti-bullying report Jan-March 2014, 23 April 2014 Total applications 151 • Finalised matters 56 • Unresolved matters 95
  8. 8. FWC: First Quarter Statistics Decisions (Current 20 May 2014) 15 Dismissed per section 587 9 Dismissed as not ‘bullied at work’ 1 Dismissed for want of jurisdiction 2 Dismissed – unclear 1 Remitted by full bench for decision 1 Granted – unclear 1 Source: Fair Work Commission, Anti-bullying report Jan-March 2014, 23 April 2014
  9. 9. FWC: First Quarter Statistics Type of Applicant (where known) N: 142 % Employee 133 94 Labour hire 3 2 Contractor or subcontractor 4 3 Apprentice or trainee 1 1 Volunteer 1 1 Source: Fair Work Commission, Anti-bullying report Jan-March 2014, 23 April 2014
  10. 10. Review of cases • Jurisdictional cases: – Balthazaar v Department of Human Services (Cth) [2014] FWC 2076 – McInnes [2014] FWCFB 1440 – McInnes [2014] FWC 1395 • Standard of bullying – SB [2014] FWC 2104
  11. 11. Example of order: Applicant v Respondent PR548852 (21 March 2014)
  12. 12. Existing anti-bulling laws There are two main categories of pre- existing anti-bullying laws at Commonwealth and State level: • Anti-discrimination legislation • Workplace Health and Safety Legislation
  13. 13. Existing anti-bulling laws: Anti-discrimination Anti-discrimination legislation (non-exhaustive): • Age Discrimination Act 2004 (Cth) • Australian Human Rights Commission Act 1986 (Cth) • Disability Discrimination Act 1992 (Cth) • Racial Discrimination Act 1975 (Cth) • Sex Discrimination Act 1984 (Cth) • Discrimination Act 1991 (ACT) • Anti-Discrimination Act 1977 (NSW) • Anti-Discrimination Act 1996 (NT) • Anti-Discrimination Act 1991 (QLD) • Equal Opportunity Act 1984 (SA) • Anti-Discrimination Act 1998 (TAS) • Equal Opportunity Act 2010 (VIC) • Equal Opportunity Act 1984 (WA)
  14. 14. Existing anti-bulling laws: Anti-discrimination Example of protected attributes: • Age, breastfeeding, employment activity, gender identity, disability, industrial activity, lawful sexual activity, marital status, parent status, carer status, physical features, political belief or activity, pregnancy, religious belief or activity, sex, sexual orientation, personal association. (Section 6, Equal Opportunity Act 2010 (Vic))
  15. 15. Existing anti-bulling laws: Anti-discrimination Individual recourse • Commonwealth: – Complaint to AHRC  Conciliation  Federal Court • State: – Complaint to relevant body  Conciliation  Relevant Tribunal
  16. 16. Existing anti-bullying laws: WHS Workplace Health and Safety legislation: • Occupational Health and Safety Act 1984 (WA) • Occupational Health and Safety Act 2004 (VIC) • Work Health and Safety Act 2011 (ACT) • Work Health and Safety Act 2011 (Cth) • Work Health and Safety Act 2011 (QLD) • Work Health and Safety Act 2011 (NSW) • Work Health and Safety (National Uniform Legislation) Act 2011 (NT) • Work Health and Safety Act 2012 (SA) • Work Health and Safety Act 2012 (TAS)
  17. 17. Existing anti-bullying laws: WHS Primary duty of employers for Workplace Health and Safety: A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of: (a) workers engaged, or caused to be engaged by the person; and (b) workers whose activities in carrying out work are influenced or directed by the person; while the workers are at work in the business or undertaking. Section 19(1) Uniform Legislation
  18. 18. Existing anti-bullying laws: WHS Duties also extend to: • Self-employed (section 19(5)) • Officers (section 27) • Workers (section 28) • Other persons in the workplace (section 29) Uniform legislation
  19. 19. Existing anti-bullying laws: WHS While at work, a worker must: (a) take reasonable care for his or her own health and safety; and (b) take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons; and (c) comply, so far as the worker is reasonably able, with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person to comply with this Act; and (d) co-operate with any reasonable policy or procedure of the person conducting the business or undertaking relating to health or safety at the workplace that has been notified to workers. Section 28 Uniform Legislation
  20. 20. Existing anti-bullying laws: WHS Recourse • Offences under the WHS legislation • Regulators have powers of inspection, powers to issue notices, powers to enter into enforceable undertakings, power to prosecute for offences
  21. 21. Existing anti-bullying laws: WHS Additional laws in Victoria: ‘Brodies law’ • Commenced in June 2011 • Serious bullying a crime punishable by a maximum 10 years imprisonment (section 21A Crimes Act 1958 (Vic)) • Included conduct: – Threats, abusive or offensive words or acts; – Acting in a way that could be reasonably be expected to cause physical or mental harm to the victim (including self-harm)
  22. 22. Scope for deregulation • Repeal FWC jurisdiction – End the litigious approach to anti-bullying – Don’t risk bullying becoming trivialised • Undertake general labour market reform – End the hostility between employers and employees • Empower individuals – Increased opportunity – Increase competitiveness – Increased labour mobility
  23. 23. Aaron Lane Research Fellow | Institute of Public Affairs www.ipa.org.au
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