Twelve months after the introduction of anti-bullying laws, legal, academia and business experts review the results.
Legal perspective: Andrew Bland, principal at Blandslaw
The recent annual report of the Fair Work Commission (FWC) showed the number of bullying complaints trending upwards. However, the numbers are nothing like what the concerned pundits predicted. Nor has the new jurisdiction turned out to be the great threat anticipated to employers and their ability to manage staff, or to the FWC’s capacity to deal with the flood of complaints.
In January 2014, as the new jurisdiction was launched, there were more than 28,000 hits on the FWC’s website dealing with anti-bullying laws. But by the six-month mark, only 343 applications had been made.
There are many reasons why we haven’t seen the spike in complaints forecast. It’s probable many employees remain unaware of the regime and how to apply it. This may account for slow creep in the number of complaints. When faced with an uncomfortable situation at work, many employees will simply leave.
The other major disincentive is that there’s no compensation available. Almost 50 per cent of the 343 applications were withdrawn before the start of proceedings. Some were withdrawn after the initial conference stage, while the majority of complaints were resolved at the conciliation stage.
Only one complaint was submitted for determination by the FWC. However, it was revoked in December, with the applicant stating the FWC process had all but eliminated the conflict between her and a bully.
Does this mean bullying is simply not an issue? Or that employers can ignore bullying complaints, safe in the knowledge that the fledgling FWC anti-bullying regime is unlikely to affect them? Absolutely not.
Research perspective: Maryam Omari FAHRI, associate professor at Edith Cowan University
Perhaps the biggest contributions of the FWA amendments were mainstreaming workplace bullying issues. The value of proactive, preventative and corrective practices far outweighs punitive measures.
The introduction of anti-bullying legislation shouldn’t be seen as an end in itself. In this case, the introduction of the legislation has raced ahead of critical research to unearth key contributing factors in the Australian context.
I’m not a supporter of the definition of workplace bullying adopted in the Act as I believe it’s far too restrictive, and a onesize-fits-all approach fails to capture the complexity of the range of behaviours considered to be workplace bullying.
We should also ask, “How many times does the negative behaviour need to happen for it to be ‘repeated’?” There’s evidence that people subjected to bullying, even if the behaviour was a one-off, can relive the experience, in effect making it a repeated event.
My research suggests that, in the Australian context, there’s a very fine line between robust performance management and workplace bullying. The work and organisational context, the state of health of both parties, the nature of the behaviour of the alleged perpetrator and the performance of the alleged victim can all be contributing factors to the escalation of the situation. This can at times create a scenario where each party accuses the other of workplace bullying.
Business perspective: Tim Baker, director, Winners At Work
From a business perspective, there’s a great deal of confusion about the new anti-bullying laws, particularly concerning the involvement of the FWC and its powers in dealing with complaints.
Most businesses are respecting the need to stamp out bullying. They have adequate policies in place. But their procedures for dealing with complaints need to be updated. Business understands its obligations to investigate complaints and implement outcomes, yet they don’t always have rigorous processes in place to do this.
There’s confusion about what constitutes bullying, and business is aware that some employees are prepared to make complaints that aren’t valid.
These issues can be resolved with thorough awareness training of managers, but some organisations are slow to implement this. There’s a general need, in light of these new laws, to educate managers and supervisors of their role and responsibility on bullying, harassment and discrimination issues. Apart from training, I’m not confident that managers have satisfactory arrangements in place for monitoring and a process for managing complaints beyond those in HR.
Boards may still see this as an operational, rather than a strategic, issue. Boards must satisfy themselves that the business has done all it should reasonably do to protect the business against adverse outcomes.
My advice to business is to implement quality training for managers and supervisors on these laws and for boards and senior management teams to ensure that their processes and procedures are up to date and rigorous in light of these new laws as soon as possible.
This article is an edited version. The full article was first published in the February 2015 issue of HRMonthly magazine as ‘Assessing the bullying barrier’. AHRI members receive HRMonthly 11 times per year as part of their membership. Find out more about AHRI membership here.