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As FWC applications begin, are employers' fears founded?

21 January 2014

While some news sources report concern amongst employers and a potentially over-zealous approach by some law firms, could the Fair Work Commission's new anti-bullying jurisdiction yet yield positive results for businesses?

It appears the fears many were voicing toward the end of 2013 were not unfounded, as some employees, and even legal practitioners, may have begun to take advantage of the system.

The Australian reported on 14 January that the wording of the Fair Work Act is not clear enough, stating that terms such as an "individual" who "behaves unreasonably" are too broad.

Earlier articles from the same news source revealed that workplace lawyers were already tapping into this, actively setting up campaigns to target victimised employees and helping them apply to the Fair Work Commission. As a result, only a week into the new year the first claim under the new law was made.

Lawyers are apparently reaching out to employers as well, urging them to make "hush money" payments to employees to avoid going to court, according to a 4 January piece in The Australian.

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However, with the changes being so fresh and therefore still awaiting the precedents set by case law, it is difficult to know how things will pan out for employers. For employees, it seems the changes are positive and timely as a recent survey by employment screening firm WorkPro suggests that employees' awareness of their workplace rights is increasing, including what type of behaviour at work is acceptable and what is unreasonable.

Results from the annual WorkPro Workplace Pulse Survey conducted in December 2013, which focuses on the issue of workplace bullying, show that 73 per cent of people are now aware if a case of bullying or discrimination has breached their rights - a 7 per cent increase from the last survey.

WorkPro points out that there was no increase reported between the 2011 and 2012 surveys, hinting that employees are now gradually beginning to have a better handle on their workplace rights.

The survey also highlighted that the number of employees who believe they have been the victim or witness to incidents of bullying in the workplace has increased, with both figures rising by 5 per cent from 2011.

Tania Evans, general manager at WorkPro, said it was important that workers around the country had a better idea of what is workplace bullying: "The new anti-bullying jurisdiction, commencing on 1 January, will provide a process for workers to report bullying to the FairWork Commission," she said,"with increased awareness of what bullying and discrimination breaches are in the workplace this is ideal timing for the new laws to be introduced."

So what steps should an employer take to navigate the currently murky waters of the new legislation?

The best way is to take a proactive approach and attempt to address any issues within the organisation. An employee taking an anti-bullying case to the Commission can cause a drain on your organisation's time and resources so ensuring employees are aware of the organisation's process for handling complaints and who to discuss any issues with will help to minimise complaints to the Commission.

This should form part of anti-bullying and harassment training provided to employees alongside thorough policies and comprehensive training for managers. Organisations should also think about their workplace investigations provision and whether investigations can be handled internally or if an external provider might be necessary. An independent workplace investigation may help to resolve a matter and satisfy those involved that it has been handled fairly. This in turn could help to prevent employees seeking help from the Fair Work Commission.

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