The new Anti - Bullying
Jurisdiction
Commissioner Anna Lee Cribb

27 February 2014
Outline
• The essential features of the new jurisdiction
– What is bullying?
– What workplaces are covered?
– Who can appl...
I am here to share but.......
• The views are my own and are not to be taken to be

those of the FWC
• Cannot provide advi...
Essential features
• What is bullying?
•

A worker is bullied if:
• While at work in a constitutionally-covered business;
...
The essential features (ctd)
•

Broad scope of applicants (workers) and other parties (individuals)

•

Broad coverage - C...
Essential features (ctd)
•

The role of the FWC (and the remedy) is preventative (not remedial,
punitive or compensatory)
...
Essential features (ctd)
• What workplaces are covered?
•

Constitutionally-covered business if:
• A person conducts a bus...
Essential features (ctd)
• Exemptions - ADF and national security exemptions
•

S.789FI – This part not to prejudice Austr...
Essential features (ctd)
• Who may apply and how?
•

A worker who reasonably believes he or she has been bullied at
work

...
Essential features (ctd)
• The role of the FWC
•

Must start dealing within 14 days

•

May make an order to stop bullying...
Essential features (ctd)
•

Type of orders - Explanatory Memorandum provides examples:
– Stop specified behaviour
– Employ...
How does the new jurisdiction
operate?
•

The new jurisdiction requires from the FWC:
•

Early and prompt assessment of th...
How does the new jurisdiction
operate(ctd)?
•

Service upon “employers” and individuals

•

Responses

•

“Triage” and inf...
How does the new jurisdiction
operate(ctd)?
•

Panel Head to decide to how and when to be dealt with
• Assigned to Member ...
Experience to date
•

High level of inquiries to FWC website (over 28,000 views of the
AB site each week in January) and 2...
Experience to date (ctd)
• Bullying parties have included:
• employee v manager/supervisor
• employee v employees
• superv...
Experience to date (ctd)
• Types of allegations
• none of serious hazing or mobbing
• most in the disciplinary action area...
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Anna Lee Cribb - Fair Work Commission - KEYNOTE ADDRESS: New Year, new legislation: The new anti-bullying jurisdiction for the Fair Work Commission

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Commissioner Anna Lee Cribb, Member of the Tribunal, Fair Work Commission presented this at the National Workers' Compensation Summit 2014. The Summit focused on minimising workplace injury claims through establishing a successful safety culture and embrace working towards successful outcomes should a workers compensation claim arise.

Find out more at http://www.informa.com.au/nwc14

Published in: News & Politics
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Anna Lee Cribb - Fair Work Commission - KEYNOTE ADDRESS: New Year, new legislation: The new anti-bullying jurisdiction for the Fair Work Commission

  1. 1. The new Anti - Bullying Jurisdiction Commissioner Anna Lee Cribb 27 February 2014
  2. 2. Outline • The essential features of the new jurisdiction – What is bullying? – What workplaces are covered? – Who can apply and how? – What is the role of the FWC? • How does the new jurisdiction operate? • Experience to date © Commonwealth of Australia — Fair Work Commission 2
  3. 3. I am here to share but....... • The views are my own and are not to be taken to be those of the FWC • Cannot provide advice – not commenting on policy • Information is general and it is not possible to be definitive © Commonwealth of Australia — Fair Work Commission 3
  4. 4. Essential features • What is bullying? • A worker is bullied if: • While at work in a constitutionally-covered business; • An individual or group repeatedly behaves unreasonably towards the worker or a group of workers; and • The behaviour creates a risk to health and safety. • Bullying does not include reasonable management action carried out in a reasonable manner © Commonwealth of Australia — Fair Work Commission 4
  5. 5. The essential features (ctd) • Broad scope of applicants (workers) and other parties (individuals) • Broad coverage - Commonwealth employment, constitutional corps, Territories – with State govt, non-corporate and ADF “exclusions” • Multiple legal and practical relationships and parties © Commonwealth of Australia — Fair Work Commission 5
  6. 6. Essential features (ctd) • The role of the FWC (and the remedy) is preventative (not remedial, punitive or compensatory) • There will be difficult parties, complex behaviours and issues and on-going employment/contractual relationships • Requirement to commence process quickly – 14 days • Parallel applications © Commonwealth of Australia — Fair Work Commission 6
  7. 7. Essential features (ctd) • What workplaces are covered? • Constitutionally-covered business if: • A person conducts a business or undertaking (PCBU) within the meaning of the WHS Act 2011 and is either: • A constitutional corporation (trading or financial); • The Commonwealth or a Commonwealth authority; • A body corporate incorporated in a Territory; • The business or undertaking is conducted principally in a Territory or a Commonwealth place. © Commonwealth of Australia — Fair Work Commission 7
  8. 8. Essential features (ctd) • Exemptions - ADF and national security exemptions • S.789FI – This part not to prejudice Australia’s defence, national security etc. • Nothing requires or permits actions that could reasonably be expected to be prejudicial to: • Defence • National Security • Covert and international operations of the AFP (s.12E WHS Act) • Ss.789FJ-FL – Declarations that FW Act provisions do not apply © Commonwealth of Australia — Fair Work Commission 8
  9. 9. Essential features (ctd) • Who may apply and how? • A worker who reasonably believes he or she has been bullied at work • Worker – defined in WHS Act 2011 and means in effect: • An individual who performs work in any capacity including as an employee, a contractor, a subcontractor, an outworker, an apprentice, trainee, student on work experience or a volunteer (but not a member of the ADF) • No time limit • Can have parallel actions © Commonwealth of Australia — Fair Work Commission 9
  10. 10. Essential features (ctd) • The role of the FWC • Must start dealing within 14 days • May make an order to stop bullying if: • Satisfied that worker(s) has been bullied and there is a risk will continue • Order is to prevent the worker from being bullied • Cannot include pecuniary amount • Must consider any known outcomes of WHS investigation, internal grievance or other procedures and any other relevant matter © Commonwealth of Australia — Fair Work Commission 10
  11. 11. Essential features (ctd) • Type of orders - Explanatory Memorandum provides examples: – Stop specified behaviour – Employer to regularly monitor behaviours – Comply with bullying policy – Provide information and additional support and training to workers – Review employer’s workplace bullying policy – Mediation between the parties – Keep the direct parties apart © Commonwealth of Australia — Fair Work Commission 11
  12. 12. How does the new jurisdiction operate? • The new jurisdiction requires from the FWC: • Early and prompt assessment of the applications • Some initial engagement with parties • Streaming and prioritisation • Case by case approach – mediation/conciliation only where appropriate • Early assignment of matters that are proceeding to Members • Matters for determination – deal with as Member sees fit using discretion and powers under the Act • Take account of nature of parties, relationships and alleged behaviour © Commonwealth of Australia — Fair Work Commission 12
  13. 13. How does the new jurisdiction operate(ctd)? • Service upon “employers” and individuals • Responses • “Triage” and information gathering • Confirm information on application and desire to proceed • Identify obvious jurisdictional problems • Information on process to all parties © Commonwealth of Australia — Fair Work Commission 13
  14. 14. How does the new jurisdiction operate(ctd)? • Panel Head to decide to how and when to be dealt with • Assigned to Member to hear as they see fit: • Preliminary conference • Mediation (only where appropriate) • Conciliation • Urgent hearing for interim or other orders • Jurisdictional determination • Merit and remedy hearing (if appropriate) • Appeals • Reference to WHS authorities © Commonwealth of Australia — Fair Work Commission 14
  15. 15. Experience to date • High level of inquiries to FWC website (over 28,000 views of the AB site each week in January) and 200+ AB calls every week to the FWC Help Line • 66 applications up to 19 February 2014 • 9 applications withdrawn • 37 allocated to Members • About 50% listed for conference • 1 listed for FB hearing © Commonwealth of Australia — Fair Work Commission 15
  16. 16. Experience to date (ctd) • Bullying parties have included: • employee v manager/supervisor • employee v employees • supervisor v group of employees • employee v mgr/staff of another business • bully v victim (counter allegations) © Commonwealth of Australia — Fair Work Commission 16
  17. 17. Experience to date (ctd) • Types of allegations • none of serious hazing or mobbing • most in the disciplinary action area • a couple of physical/verbal threats and/or physical violence © Commonwealth of Australia — Fair Work Commission 17
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