The Fair Work Commission has seen an expansion of its powers this year.
It can now hear bullying cases, as well as cases involving adverse action and unlawful termination allegations.
From January 1, employees who believe they are the victim of “repeated unreasonable behaviour” by a co-worker can, provided they cough up a $65.50 application fee, ask the Fair Work Commission to make an order for the bullying to stop.
The commission can, if the bullying is likely to continue, make a ruling that it should stop. It cannot fine employers for any bullying that goes on in their workplaces. However, bullied employees can request an apology, a change of roster or a transfer.
After a complaint is received, employers or employees accused of bullying will have to fill in a form to defend their actions. They’re given a pass on answering questions they believe “may be self-incriminating”.
This can pose problems for employers, University of Adelaide law professor Andrew Stewart, who helped draft the Fair Work Act, recently told SmartCompany. He said the change risks swamping the commission with thousands of complaints that aren’t true bullying cases.
“The potential problem I’ve heard from a lot of practitioners is that it becomes an outlet for anyone who is concerned about how they’re being performance managed.
“The situation is where a performance management process results in an employee feeling like they are being treated unfairly, and this can result in them being away from work and then putting in a claim for work induced stress. In some cases this is a genuine reaction, but in other cases it is just a convenient tactic,” he said.
It’s not the only expansion of Fair Work’s purview that began on January 1. Industrial relations lawyer Peter Vitale says that the Fair Work Commission can now, provided both parties agree, arbitrate disputes around unlawful termination and dismissal.
“Previously, these claims could only be determined by either the Federal Court or the Federal Circuit Court,” he says. “The Commission’s role up till now has been limited to having conciliation between the parties to see if a resolution can be achieved.
“The difference now is that if both parties agree, there’s no need to go to Federal courts. It’s an attempt to reduce the costs of prosecuting these types of crimes, and also to achieve a more rapid resolution.”
The Fair Work Amendment Act 2013, where all these changes were passed, also put a number of new responsibilities on employers.
These include a requirement to consult with employees over changes to rosters and working hours.
Employers also have to play nice with unions, at least to an extent.
“There have been a number of changes to make it easier for unions to enter workplaces and meet with employees,” Vitale says. “The new government has said it will reverse these changes, but they’ve already started.
“The gut of the changes specifies that unions are allowed to use lunchrooms for meetings.
“This was often a source of dispute between employers and unions, because employers would argue that there are people in there quietly having their lunch who don’t want to be disturbed. But unions would say it’s the best place to meet employees without people being singled out for walking into a meeting room.
“The legislation now says specifically that lunch rooms can be used.”
The government has asked the Productivity Commission to examine the workings of the Fair Work Act, and may make more changes in the future, Vitale says.
“Clearly the government is keenly avoiding anything that’s going to cause controversy in this area,” he says. “I don’t think we’ll see anything changing quickly.”
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Myriam Robin is a reporter for SmartCompany and its sister site LeadingCompany. She has degrees in economics, international studies and journalism. She likes writing about businesses taking risks and doing new things.
