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Michael writes on emerging markets, architecture and engineering. He has served as a correspondent in Tokyo, London and Johannesburg and has written for Reuters, the Financial Times, The Age and The Sydney Morning Herald.

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Triage or floodgates? Fears that new anti-bully rules will trigger wave of complaints

Published 21 November 2013 00:01, Updated 21 November 2013 10:23

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Triage or floodgates? Fears that new anti-bully rules will trigger wave of complaints

The new workplace anti-bullying laws could create a mechanism that will encourage other problems that need different remedies to be labelled as “bullying”. Photo: Louie Douvis

The implementation of new workplace anti-bullying laws on January 1 is likely to unleash a flood of complaints to authorities as employees use the mechanism to label general unhappiness as bullying, a labour lawyer warns.

“There will be a litany of complaints that are made, that were not intended to be captured by the laws,” says Joydeep Hor, the managing principal of law firm People + Culture Strategies.

This does not necessarily mean staff would abuse the new system with vexatious or frivolous claims, Hor says.

Rather, it is likely to create a mechanism that will encourage other problems that needed different remedies to be labelled that way.

“Many of them will be genuinely aggrieved individuals who are looking for a solution to a workplace problem,” he says. “What will be found is that as unhappy as they may be and as wronged as they may have been, they were not bullied.”

What will be found is that as unhappy as they may be and as wronged as they may have been, they were not bullied

Amendments to the Fair Work Act outlaw workplace bullying, defining it as unreasonable behaviour towards a worker that creates a risk to health and safety. Under the new system, the federal government’s Fair Work Commission will be obliged to act on applications within 14 days.

It has been designed to bring about quick remedies and stop workplace bullying – which in 2010 the Productivity Commission said imposed a cost of between $6 billion and $36 billion on the economy each year – more quickly than the existing state-by-state regimes.

Checks, balances

While the new rules permit employees to lodge complaints directly with the commission, the arbiter is only able to issue orders to the alleged bully or bullies to stop the disputed behaviour. It will not be able to order compensation. Employees bringing vexatious claims will be liable to pay costs of the action. Claims have to relate to current, not past, conduct and employers are able to take “reasonable” management action in a “reasonable” manner.

“The architecture of the system devised has a number of checks and balances which will discourage unmeritorious claims,” says Josh Bornstein, an employment partner at Maurice Blackburn lawyers.

Employer groups are concerned, however.

“You could drive a truck through the holes in the legislation,” says Council of Small Business of Australia [Cosboa] chairwoman Amanda Lynch.

“Someone could accuse an employer of being a bully because the poor employer is talking to them about their workplace attitude in a room with glass walls that means other employees can watch the feedback being conducted.”

Overlapping systems?

Lynch, who puts the average value of a bullying settlement between $7000 and $10,000, also said the new legislation duplicated responsibility for bullying already covered by state bodies such as WorkCover in NSW and WorkSafe in Victoria.

The establishment of an additional route of redress for victims of workplace bullying may, in the short term at least, create an initial surge in applications to the commission from January. There will be no limits on victims making multiple applications in multiple jurisdictions, so people who feel their existing claims are going nowhere will be able to make an additional claim to the commission.

The commission on Thursday was due to issue a guide on how it would deal with cases.

“It is difficult to predict the number of anti-bullying applications that will be made, but we expect it will be significant,” says Fair Work Commission president Iain Ross. Bornstein says there will not necessarily be a surge.

“Will it lead to a flood of claims?” he asks. “The truth is I don’t know the answer and neither does anybody else.”

There’s a lot of speculation. But it’s not speculation borne of anything other than gut feeling

Some employees are excluded from the system, including state government employees, Australian Defence Force employees and Australian Federal Police employees. Commonwealth public servants do fall under its remit.Employment Minister Eric Abetz likens the commission’s new role to that of a “triage” nurse – assessing claims as they come in and sending those that do not fit back to state jurisdiction.

“The government wants to ensure that the jurisdiction isn’t abused,” a spokesman for Abetz tells BRW. “We will eagerly watch the implementation of the jurisdiction from January 1 and welcome the commission’s own work to create a triage system for claims as they come in.”

The government wants to ensure that the jurisdiction isn’t abused or used as an industrial tool

Hor says his own firm has seen a rise of workplace bullying complaints, from between 10 and 15 in 2010, to as many as 70 this year.

Imperfect solution, more needed

The new system only goes halfway, and further mechanisms are needed to address other problems such as unsuitable feedback or offensive language that people will otherwise declare to be bullying, he says. “People resort to the label of bullying because they know it will get a response.”

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