aaron lane - institute of public affairs - towards a dignity of work without the regulation – a...

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

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

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


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))


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))


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

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


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



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


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

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 level:

• Anti-discrimination legislation

• Workplace Health and Safety Legislation

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)


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))


Anti-discrimination

Individual recourse

• Commonwealth:

– Complaint to AHRC Conciliation

Federal Court

• State:

– Complaint to relevant body Conciliation

Relevant Tribunal

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)


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


Duties also extend to:

• Self-employed (section 19(5))

• Officers (section 27)

• Workers (section 28)

• Other persons in the workplace (section

29)

Uniform legislation


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


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


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)

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

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...

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