Is prevention better than cure according to FWC changes?
12 December 2013
The new dimension to the handling of bullying allegations by the Fair Work Commission highlights the need for employers to be able to demonstrate a proactive and preventative approach to workplace bullying. The Fair Work Commission's (FWC) new anti-bullying jurisdiction comes into force on 1 January 2014.
"Greater onus is now being placed on the organisation to have processes in place to identify risk and deal effectively with allegations" noted Stephen Bell, Director of iHR Australia who developed the unique Workplace Reality Theatre methodology and is a thought leader on workplace and leadership behaviour.
Bell stated that he sees the new jurisdiction as giving the FWC a "watchdog" role where a bullying prevention order can be issued much like a "Provisional Improvement Notice in the various WHS jurisdictions."
A worker will now be able to make an application direct to the Commission which is empowered to issue an order to stop the bullying behaviour. The nature of these Orders is not yet clear but may include directions that employees be relocated, monitoring arrangements be implemented and investigations undertaken etc.
Importantly for employers, the FWC will give consideration to relevant factors when making any order and these factors include, but are not limited to:
- outcomes arising out of an investigation into the matter by another person or body (whether or not the investigation is complete); and
- any procedures available to the worker to resolve grievances or disputes, and any outcomes arising from those procedures.
Whatever consideration the FWC gives to the actions of the employer in dealing with the application, the majority of employers would prefer for a matter never to reach that stage which is why, Bell says, culture building is so important.
"Managers must understand the need to create a culture where people feel comfortable coming forward, not just in terms of making a complaint, but discussing behaviour in general."
Bell calls this a culture of "relative openness and trust" and says this should extend to trust in the organisation as well as individual managers.
"Building the right sort of culture cannot happen if a leader is constantly harsh or reactive, constantly avoids issues or has favourites within a team and is not seen to be fair," Bell says, "the two key attributes Australian workers value most in a leader are fairness and decisiveness, both of which are important in dealing effectively with complaints."
Although it is clear from the guidance given in the FWC's draft Anti-bullying Benchbook and Case Management Model that policies and procedures regarding behaviour are important, the need for training on these policies and appropriate behaviour is also clear; training or information for staff may even form part of a bullying prevention order issued by the Commission.
However, Bell warns that organisations must be wary of providing training purely focused on communicating legislation, policies and processes and instead should ensure that, while these points are covered, the need for culture building is made clear.
Training for employees is important and should cover the organisations informal options for dealing with issues as well as the formal complaints process.
Ultimately, Bell says, taking this type of proactive approach "should give employees confidence in management's willingness and capacity to deal with their concerns and will assist in mitigating the risk of inappropriate behaviour. This in turn will help prevent employees from taking complaints to an external body."
Bell's four main "ingredients of trust" to help avoid unnecessary complaints are:
- Well developed and communicated policies and procedures;
- Trained complaints "contact points" such as Contact Officers, managers and the HR team;
- A culture and leadership approach that encourages people with grievances to come forward; and
- Effective resolution processes such as mediation or impartial investigations.
Further details about the changes can be acquired from the Commission's draft Anti-bullying Benchbook and draft Case Management Model which were released in November 2013.
For information on iHR Australia's training options click here.
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