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Jonathan Hamberger: A specific statutory remedy for workplace bullying? The Australian experience.

Friday 22 January 2016

Jonathan Hamberger, Senior Deputy President of the Fair Work Commission, discusses how Australia has tackled workplace bullying

 

Jonathan Hamberger

Jonathan has been a Senior Deputy President of the Fair Work Commission (and its predecessors) since 2004. Prior to that he spent over 20 years in the public sector both as a policy adviser and as a manager - including six years running a government agency. In 2015 he was awarded the degree of Doctor of Philosophy for his research into workplace dispute resolution in Australia.

Jonathan Hamberger 2

In Acas' recent discussion paper pdf icon Seeking better solutions: tackling bullying and ill-treatment in Britain's workplaces [429kb] we called for an open debate on solutions for the better prevention and management of bullying. To encourage this debate, we've asked a range of experts to give their views in a series of blogs. Here, Jonathan Hamberger from Australia's Fair Work Commission talks about the recent introduction of an anti-bullying jurisdiction in Australia.

Since 1 January 2014, Australian workers have been able to seek anti-bullying orders from the Fair Work Commission (the national industrial relations tribunal).

The definition of bullying in the legislation is quite broad: a worker is bullied at work if another individual, or group of individuals, repeatedly behaves unreasonably towards the worker, and that behaviour creates a risk to health and safety. Behaviour will not be considered bullying if it is 'reasonable management action carried out in a reasonable manner'. The bullying party can be a supervisor, subordinate or peer. The Commission can make any order it considers appropriate to stop the bullying. It cannot however make an order requiring a financial payment (though workers may be able to seek compensation through separate workers' compensation legislation). Before an order can be made, the Commission must be satisfied that the worker has been bullied at work, and there is a risk that the bullying will continue. In practice this means the worker must still be at the workplace where the bullying occurred (or at least planning to return to work there if they are absent on leave).

What has been the experience so far? In the first two years of operation, the Commission received 1433 applications for anti-bullying orders. (The Australian workforce is around a third the size of that in the UK) However formal anti-bullying orders have been issued in only a handful of cases. Some applications have been dismissed because the employee is no longer employed at the workplace where the alleged bullying took place. Other applications have failed because the alleged bullying has been held to be 'reasonable management action'. However a very substantial proportion of applications have been resolved informally through a process of conciliation. This reflects the almost universal preference of the parties involved (as well as Commission members).

The legislation suffers from the defects shared by all complaint based systems. For example, employees who have been bullied may lack the confidence to make a claim - especially where it relates to their current workplace. Undoubtedly the best approach to the issue of bullying is to create the sort of positive workplace culture promoted by Acas.

That does not mean however that there is no role for processes such as that adopted in Australia. In most of the cases I have dealt with there has been a serious breakdown in workplace relationships - often as a result of poor communications or inept management. By adopting a 'problem solving' approach the Commission has been able to assist many people address those relationships. The parties have often derived considerable benefit from being able to work through their issues in a relatively informal setting, but with the active involvement of an independent third party.

The legislation is certainly not a panacea for the problem of bullying. But it can play a useful role - not least by sending a powerful signal that organisations need to take the issue seriously.

Read other blogs in our bullying series:

4 Comments

  • Posted by Cronica  |  27 April 2017, 6:51PM

    Great publish! I'm really on the point of across these details, is extremely useful my pal Also great blog here with all the valuable information you've Continue the great work you do here Cronicutza | Cronica

  • Posted by A comment from Australia  |  15 March 2016, 12:41PM

    I actually come from Australia and work at one of the newly opened Australian startups called Aubiz. Obviously, as in any business, sometimes tension is high and from time to time people tend to handle things not as delicately as they should have, but in general I would never say either my colleagues (at least to my knowledge) or I have been victims of work bullying. Maybe I was just among the more fortunate ones...

    Clare

  • Posted by John  |  15 February 2016, 1:51PM

    I've read a lot about the Australian anti-bullying legislation and found it a great step ahead. As you say it is a major alert for employers to treat the matter with seriousness. I experienced severe bullying at work and the organisation I was employed by didn't suffer any consequences.because of that. I hope it will change in the near future.

    - John

  • Posted by Blog on bullying  |  24 January 2016, 6:24AM

    there's a lot of interest overseas in the still relatively new Australian anti-bullying legislation

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