Contact: Tim Lange; Partner, Employment Relations, Piper Alderman (New South Wales, Australia)
Can the new Commission anti-bullying jurisdiction be used to wrest back responsibility for workplace conduct from rogue elements intent on influencing workplace behaviour without reference to the employer? The Fair Work Commission has now given strong support to the view that it can. The Commission handed down one of the most anticipated decisions in its anti-bullying jurisdiction in late 2015: Bowker & Ors v DP World & Maritime Union of Australia (MUA) [2015] FWC 7312.
Associate, Hannah Linossier and Lawyer, Katherine Lee discuss the recent decision and the key issues employers should be aware of when taking steps to prevent and deal with bullying in the workplace.
Background
The applicants, Annette Coombe, Sharon Bowker and Steven Zwarts are Stevedores employed at the Melbourne site of DP World (DPW). Ms Coombe, Ms Bowker and (until recently) Mr Zwarts were all also longstanding MUA members.
In mid-2013, Ms Bowker substantiated a complaint made by Ms Coombe about inappropriate workplace conduct. At DPW, the making of or substantiation of a complaint is viewed by the workforce as “lagging” (or dobbing) on a colleague. Lagging is so severely frowned upon at DPW that personnel issues end up being dealt with by the relevant union, so that management was not involved. Ms Bowker’s “lagging” set in motion a series of events that led to a MUA delegate’s employment being terminated. When the broader workforce became aware that the MUA delegate’s employment was at risk, Ms Coombe and Ms Bowker (and later Ms Zwarts, as a result of withdrawing his MUA membership in protest of the MUA’s treatment of Bowker and Coombe) were subjected to a range of bullying conduct by the workforce and the MUA. That conduct not only occurred in the physical workplace, but continued outside of work and on social media.
Applicants’ Position
The applicants brought an anti-bullying application against DPW and the MUA. For the FWC to make anti-bullying orders under s 789FF of the Fair Work Act, the applicants had to establish that they had been bullied at work and that there was a real risk that they would continue to be bullied at work. The applicants gave evidence of no less than 212 complaints and concerns they had raised with DPW and 37 largely uncontested examples of bullying towards them. The applicants also identified five key issues they alleged indicated a continuing risk of future bullying, including:
- a ‘code of silence’ that existed in the workplace and the MUA, which dissuaded employees from making or verifying complaints for fear of being labelled a ‘lagger’ and being ostracised
- DPW’s inadequate workplace investigations into the bullying
- the incompleteness of DPW’s investigations
- inadequate return to work arrangements that lacked “hard measures” to combat workplace risks
- DPW’s delay in advising the applicants of outcomes to complaints and concerns.
Respondents’ Position
DPW gave limited acknowledgement that the applicants had been bullied. It argued it had established policies and was taking steps to address the bullying and other undesirable workplace behaviour, which was part of a wider cultural change in the workplace.
The MUA formally denied the applicants’ allegations of bullying but accepted, on the basis of the applicants’ evidence, that the FWC could find that the applicants had been bullied. It took the position that no anti-bullying orders were necessary because: the bullying allegations were relatively old and therefore were not reliable in determining whether the applicants would be at risk of experiencing similar conduct in the future; there had since been a number of changes in “state of affairs at the workplace”; the applicants failed to identify exactly which persons would be responsible for future bullying; and the MUA provided undertakings to take steps to reduce the risk of future bullying to the applicants.
Findings
DP Gostencnik found that:
- Each of the applicants had been bullied at work, and that there was a future risk that the bullying would continue once the applicants returned to work.
- The bullying behaviour was “enabled” by the workplace ‘code of silence’, which was so entrenched in the workplace culture that it meant that employees would not make or verify workplace complaints to DP World, without first approaching the MUA, for fear of being ostracised, bullied and labelled a ‘lagger’. DPW had not succeeded in dealing adequately with the ‘code of silence', which would take more time and effort to shift, change and ultimately eradicate.
- The MUA’s system of authority and control at DPW, continues to create a live risk that the applicants will be bullied when they return to work. The exact identities of the individual or group of bullies are not required to be defined as long as they can be identified “by some description”. It is also unnecessary to identify the form of the future bullying to be satisfied that there is a risk of it occurring.
Eight orders were made against DPW that ranged from targeting internal management of workplace behaviour to involving WorkSafe Victoria in conducting risk assessments. The MUA and individual MUA members implicated in some of the bullying conduct, offered undertakings to avoid any potential orders being made against them. However, the FWC identified more extensive undertakings it would accept from the MUA in lieu of making orders, including obligations to correct the misguided adherence to the ‘code of silence’,
Lessons for Employers
As one of the most significant cases in the Commission’s bullying jurisdiction to date, employers and HR professionals should take note of the key messages that arise from the decision:
- Anti-bullying powers can be exercised against unreasonable third-party behaviour in the workplace where necessary to ensure that employees are responsive to employer direction, rather than unreasonable direction or influence of a third-party.
- Influential unions can guide their members to comply with reasonable workplace conduct under the employer’s direction, but if necessary anti-bullying orders can be directed to ensure union influence is used to enhance an employer’s responsible control over workplace conduct.
- A robust and effective investigation process that minimises delay in resolution of personnel complaints is a key step in an employer avoiding criticism over inadequate process, and in avoiding anti-bullying orders altogether.
- Anti-bullying orders can be flexible depending on what is necessary and appropriate, and may benefit the workplace by reducing potential for bullying without significant interference in the employer’s operations.
