Changes to the anti-bullying law introduce a rabbit warren of paperwork and processes. Part 1 of this two part article guides you through the maze.
As we all wind down for the end of the year, the Fair Work Commission (FWC) is gearing up for the start of the new anti-bullying regime on 1 January 2014. Here we outline the process that you, or your business, will need to follow if you are faced with a bullying claim after the New Year.
The person being bullied will complete an application form and submit it to the FWC for consideration. The FWC’s Anti-Bullying Team will check the details to ensure the form is valid and complete, and contact the applicant within 14 days.
The Anti-Bullying Team will then question the applicant regarding the nature of the application and to ensure they understand the issues, before confirming the applicant wishes to proceed.
Assuming they do, the Anti-Bullying Team will prepare a report for the Head of the Anti-Bullying Panel (the Panel Head). This report will outline any jurisdictional issues, the nature of the alleged conduct, whether the complaint is suitable for mediation, any factors of urgency, and other relevant issues.
The FWC will then serve the application on the employer and, about 24 hours later, on the alleged bully.
Where there are allegations of physical abuse, the application may not be served on the alleged bully until the Panel Head or other Member has commenced dealing with the application. The employer and alleged bully will have an opportunity to provide a response to the Commission.
The Panel Head will review the report and decide whether the matter will be assigned to a Panel Member for either mediation or determination, or whether it should be dismissed because the application fails to meet the required elements. If there are any immediate jurisdictional or other issues, the Panel Head has the power to hear and make a determination on these matters.
Mediation and Conciliation
The Panel Head will refer the matter to a Panel Member, based on the urgency of the matter, the location of the parties and the availability of Members.
The Panel Head may also refer the matter to a staff mediator to conduct a mediation, or to further investigate the issues, before it is assigned to a Panel Member.
During mediation, the mediator will drive the process and provide guidance, but will not make a determination or recommendation. Where parties are required to attend a conciliation, the Member may be more proactive in generating an outcome, and will make assessments and recommendations as appropriate.
If a matter is not resolved, or is not suitable for mediation/conciliation, it will be referred for a public hearing. Parties will be required to attend a preliminary conference where the issues, the parties’ positions and best approach will be determined. The Member will then decide when and how the matter will be heard. During the full hearing, the Member may make an order they consider appropriate, in accordance with the Fair Work Act 2009 (Cth). A matter may be appealed with the leave of the Full Bench.
The FWC has committed to review this new process in July 2014, and again in early 2015 to measure its efficiency and effectiveness.
In Part 2 of this article, we will explain the elements of an application, and the possible orders the FWC may make.