Employers and all of those who are concerned with IR and HR issues know that from the start of this year, the FWC or Fair Work Commission has acquired jurisdiction to thwart orders related to bullying, especially in the workplace.
According to a published report, Solicitor Claire Tuffield and Partner Andrew Tobin have released decisions coming from the FWC, which showcase the application and scope of the jurisdiction, coupled with other pending developments.
Key Points to Remember
•The said jurisdiction will not be available to employees who work under businesses which are not covered by the Constitution. For a lot of employers, their status will potentially become a problem.
•In the present regulatory environment, issues stemming from bullying and bullying in itself are considered as among the underestimated, but most significant risks that are present in modern working environments. Based on recent statistics, this is an area which employers have not managed reactively.
•Employers have to make sure that they are able to act proactively and quickly in order to stop and prevent bullying inside the workplace. This will give them a strategic advantage in order to avoid any adverse consequence that can result from having a worker bullied.
Background on the Laws
The new laws on bullying have been operationally applied since January 1 of this year and they aim to provide workers with the opportunity to bring their application to FWC in order to get an order that will thwart the said act.
In order for the FWC to hear the worker’s application, there are three general requirements that need to be met.
1.There must be a reasonable belief on the part of the worker that he or she has been bullied at the workplace.
2.FWC must be convinced that an individual or group bullied the employee.
3.FWC should be satisfied that the said bullying resulted to some risk or threat on the safety of the worker inside his or her working environment.
After due process and consideration, the FWC has the jurisdiction to make orders which it deems appropriate for the prevention of further bullying on the worker’s part. Aside from an order requiring the payment of a certain monetary amount to be determined by the Commission, it may also proceed to prosecute the accused individual or group and subject them to civil penalties.
What Is The Role of Unions?
The issue on whether union can pass applications on behalf of the bullied workers is yet to be resolved after a full bench hearing to be scheduled this April.
According to the language of the law, applications may be passed by “workers”. However, an express provision regarding representative application is absent so this leaves so much room for interpretation on whether or not paid agents and lawyers of a certain party can settle disputes in front of FWC.
An exception to the general rule, as announced by the FWC, is when a person is allowed to be represented by a paid agent or lawyer if said representative is also an officer or employee of the union which is representing the same individual.