Regular readers of my Switzer column will know that while I am deeply opposed to workplace bullying, I am also deeply opposed to the new anti-bullying provisions that became part of the Fair Work Act 2009 on 1 January this year.
These new provision now allow most employees to completely by-pass state and territory workplace health and safety agencies and lodge claims of workplace bullying directly with the Fair Work Commission (regular readers will know I don’t think much of the Commission either). The FWC then needs to begin dealing with the complaint within 14 days. Commissioners have the power to issue Orders which, if not scrupulously followed, expose alleged bullies to penalties of up to $51,000.
And so, just over a week ago, we saw the very first substantive anti-bullying Order issued by the Commission – and what a cracker it is! Senior Deputy President Drake imposed the following conditions upon the alleged bully:
> They must not comment on their co-worker’s dress or appearance
> They must not send any emails or texts to their co-worker (except in an emergency), and
> They must finish work at the workplace before 8:00am so that they’re gone by the time the alleged victim arrives
It is somewhat ironic that in the same week that we were debating the repeal of section 18C of the Racial Discrimination Act 1975 and the importance of free speech as a fundamental human right, the Commission issued an order restricting someone from saying anything about another person’s dress or appearance. Is that really the role of our tribunals and courts? And where will this all end?
Better HR works with thousands of employers, and everyday we’re hearing new stories of workers claiming that they’re being bullied by our clients when they’re asked to turn off their mobile phone at work, or told to stop swearing, or asked not to spend half their working time updating their Facebook status. We need to do all we can to stamp-out workplace bullying, but we can’t do much while our system becomes clogged with cases like those or while Commissioners issue Orders that permit a person to say ‘good morning’ but make it illegal to say ‘you look nice today’.
And this takes us back to the fundamental problem with the new bullying laws – they assume our existing state and territory workplace health and safety agencies aren’t competent enough to deal with workplace bullying. And if that’s true, then the answer must surely be better resourcing, not more nanny-state bureaucracy.
Published: Wednesday, April 02, 2014
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