Also, any written information provided by FWO about the new regime will need to be carefully analysed and constructed to ensure that it also acts as a filter for unmeritorious claims.
Regardless of the material prepared by the FWO, there is significant concern within corporate Australia that the bullying jurisdiction will allow claims to be brought prematurely.
Secondly, the FWC’s case management processes will need to be effective in achieving the objectives of the new jurisdiction. The FWC has now released a summary of its proposed case management model.
The FWC’s commitment to gather information before mediating or hearing a claim will give employers an opportunity to address the worker’s concerns without assistance from the FWC. In our experience, such resolution is more likely to achieve longer-term results without clogging up the FWC.
It remains to be seen whether the FWC’s proposal to use the information it gathers to give preliminary consideration to claims will have the effect of limiting the number of claims continuing to mediation or a hearing. Similar filters have not worked in the past, with Commissioners reluctant to bring an early end to claims even where they have no realistic prospect of success.
To keep the FWC free to hear the most serious workplace bullying claims, processes such as mediation by trained FWC staff members should prove useful.
It’s crucial that this process works for all parties involved if it is to fulfil the aim of curbing workplace bullying.
Simon Dewberry is a Partner, and Andrew Stirling is a Senior Associate, in the Workplace Relations group at law firm Allens.
Andrew Sadauskas is a former journalist at SmartCompany and a former editor of TechCompany.
