First Jurisdictional Decision for the Fair Work Commission's Anti-Bullying Regime
The Fair Work Commission’s (FWC) Anti-Bullying Regime opened its doors on 1 January 2014. The new Anti-Bullying Regime got off to a leisurely start with only 66 applications being received in the first few months of operation. Applications are, however, progressing and earlier this month the FWC determined its first jurisdictional objection to an application for a FWC order to stop bullying.
FWC has Power to Consider Pre-1 January 2014 Bullying Behaviours
In Ms Kathleen McInnes  FWCFB 1440, the employer objected to the application for a FWC order to stop bullying on the basis that the alleged bullying conduct occurred prior to 1 January 2014, when the Anti-Bullying Regime commenced.
The FWC dismissed the employer's objection and confirmed that:
Unique Challenges Faced by Employers in the Life Sciences Industry
While the FWC has the power to hear and determine applications involving alleged bullying conduct which occurred prior to 1 January 2014, the FWC must determine that the following conditions are satisfied before making any orders to stop the alleged bullying behaviour:
The statistics released by the FWC confirm that a significant number of the applications for FWC orders to stop bullying relate to alleged bullying by supervisors and managers. Further, a high proportion of the alleged bullying behaviour occurred in a performance management and/or disciplinary action context.
These statistics suggest that the employers defending the applications will rely on the exemption in the Fair Work Act (Cth) 2009 that ‘reasonable management action carried out in a reasonable manner’ does not constitute bullying.
Employers in the life sciences industry face a number of unique challenges in relation to performance management and disciplinary processes which may create an additional hurdle to overcome when seeking to establish that a management action was both reasonable and carried out in a reasonable manner. Some common challenges faced include:
The life sciences industry is also characterised by a number of environmental factors that are conducive to bullying behaviours, including:
Future-Proofing in the Life Sciences Industry
There are a number of actions that can be taken by life sciences employers to assist with successfully establishing that the conduct in question was both a reasonable management action and carried out in a reasonable manner:
While the up-take by workers seeking FWC orders to stop alleged bullying behaviours has been initially low, the FWC has reported a high level of activity by workers in terms of utilising the bullying help line (which on average receives more than 200 calls a week) and the dedicated anti-bullying section of its website (which has received approximately 28,000 hits to date).
As workers familiarise themselves with this new avenue to pursue workplace bullying, employers in the life sciences industry can start future-proofing their performance management and disciplinary processes to help minimise and defend applications for FWC orders to stop alleged workplace bullying.
 5 February 2014 Media Release Fair Work Commission Releases First Anti-Bullying Statistics
 Ms Kathleen McInnes  FWCFB 1440
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