- Traditional legal mechanisms struggle to effectively respond to the complex and often elusive nature of bullying conduct.
- The impact of the FWC stop bullying jurisdiction is constrained by laws that are only capable of responding when the bullying conduct is brought to the surface, and stays there.
- The effectiveness of the jurisdiction is therefore likely to be seen below the surface, including where the FWC deals with individual cases using its informal dispute resolution methods.
No one likes a bully. In a rare bipartisan approach to industrial laws, the Fair Work Act 2009 (Cth) (‘FW Act’) was amended to include, effective from 1 January 2014, a new jurisdiction that enabled workers to apply to the Fair Work Commission (FWC) for an order to ’stop the bullying’.
The laws responded to broader social concerns about bullying conduct, galvanised by tragic cases, and a recognition that the problem is real. The irrefutable propositions driving the laws were that workplace bullying exists, and has a profound and prolonged impact on employees, which also undermines employer efforts to create a cohesive and productive workplace. The more evasive quantification of the frequency and cost of bullying also supported the need to act quickly, with frequently cited studies suggesting approximately 6.8 per cent of Australian workers had experienced bullying in the preceding six months, and the estimated cost to the Australian economy placed at between $17 billion and $36 billion per year (Productivity Commission Draft Report into the Workplace Relations Framework, 2015).
It has now been 20 months since the introduction of the FW Act stop bullying laws. From 1 January 2014 to 31 March 2015, 874 applications were made (Fair Work Commission Quarterly Reports: Anti-Bullying 2014-2015), well short of the expected 3,500 applications each year. Only four stop bullying orders have been made to date – all by consent, two of which related to the same individuals, and one of which involved a family dispute played out in the workplace.
These ’hard’ measures have prompted varying degrees of criticism, and reinforced doubt over the extent to which legal mechanisms can produce the necessary changes of behaviour and culture to effectively respond to the complex and often elusive nature of bullying. The recent Productivity Commission Draft Report into the Workplace Relations Framework more neutrally observes that it is too early to determine the jurisdiction’s effectiveness. Perhaps though, the effectiveness of the jurisdiction lies in what is not seen.