New bullying measures criticised for fostering 'entitlement and victimhood'

http://www.theguardian.com/society/2013/dec/27/bullying-measures-foster-entitlement-victimhood

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The creation of a new avenue for Australians to pursue workplace bullying complaints will foster a “sense of entitlement and victimhood” among employees, the head of a large business group has argued.

The Australian Chamber of Commerce and Industry’s chief executive, Peter Anderson, issued a call for people “to be more tolerant of each other” in the workplace, as the Fair Work Commission prepared to handle a new category of cases from next week.

The new system, beginning on 1 January, allows workers to apply to the commission seeking a formal order to cease the bullying. The Gillard government law, which passed through parliament earlier this year, defines bullying as an individual or group repeatedly behaving unreasonably towards the worker and “that behaviour creates a risk to health and safety”. It says this “does not apply to reasonable management action carried out in a reasonable manner”.

The commission must start dealing with the application within 14 days. It may not award compensation or impose a fine, but the company could subsequently face a financial penalty if the order to stop the bullying is not heeded.

Anderson said he saw a real risk the new avenue would be misused by people who did not have genuine bullying complaints.

“I don’t think we’ll see an avalanche of claims in the first few months but I think what we will see is a progressive sense of entitlement and victimhood created as people who have disagreements in the workplace and are disaffected try to use the bullying jurisdiction as a tool to get some additional money or get back at people who they have disagreements with,” he said.

In calling for greater tolerance, Anderson said he was not talking about only the management and worker relationship but also the interactions between fellow employees. He said the business owner was “often completely ignorant about what is happening between staff members” and found it difficult to get to the bottom of claims.

But the assistant secretary of the Australian Council of Trade Unions, Michael Borowick, rejected business “scaremongering about a rush of frivolous claims”.

“If there is a rush of claims that could prove the extent to which bullying is an issue in the workplace,” Borowick said. “The commission members aren’t idiots. These are experienced and knowledgeable practitioners and having been up there many times I know you get short shift if you’re up there waffling. The commission will be able to sort [vexatious claims] out quickly.”

He said the cost of bullying on the economy was estimated to be between $6bn and $36bn each year and came at great personal cost to those affected. He said people often left their job because they could not handle the bullying any longer.

Asked about Anderson’s comments about tolerance and victimhood, Borwick said community standards had changed. “Once upon a time things that were seen as acceptable are now seen as unacceptable,” he said. “Now it’s not appropriate that people are bullied in the workplace. There’s a definition around bullying; it’s not just an airy fairy concept that someone stared at me or was mean to me.”

The McKays Solicitors principal Ian Heathwood, whose clients are predominantly employers, warned of the potential of “upward bullying” in which an employee facing performance management used the threat of a complaint to put pressure on the boss. He said the arrival of the commission’s new powers should force employers to be more cautious in their performance management procedures.

“I think they’re going to be very, very careful how they do it and do it more professionally than many businesses have done it in the past,” he said.

But Heathwood acknowledged genuine victims of bullying sometimes were reluctant to take action. An example of such a case was an engineer for a multinational company who suffered a nervous breakdown after enduring abuse from a foul-mouthed boss, including yelling, screaming and having a bag thrown at him. The worker never pursued a claim.

“I have certainly seen cases where people who have been bullied and quite seriously have failed to do anything about it and just left [the business] or started down the procedure and found it difficult and confronting and gave up,” he said.

Heathwood said employees should generally try to pursue the matter through internal company processes first. If the claim was not dealt with satisfactorily, the the employee would be in a stronger position when pursuing it at the commission.

“I still can’t see them [the commission] being resourced to cater for the number of complaints I suspect they’re going to receive.”

The commission has given examples of orders it could give to end the bullying, including requiring the individual or group of individuals to stop the behaviour; regular monitoring of behaviours by an employer or principal; compliance with an employer's or principal's bullying policy; the provision of information, additional support and training to workers; and a review of the employer's or principal's bullying policy.

The Fair Work Act says the commission may dismiss an application if it is “frivolous or vexatious” or “has no reasonable prospects of success”. Those who can apply to the commission include an employee, a contractor, a subcontractor, an outworker, an apprentice, a trainee, a student gaining work experience or a volunteer.

The employment minister, Eric Abetz, who previously vowed to introduce a form of “filter” to ensure complaints were genuine, said the Abbott government would watch how the new system was implemented.

“The government will carefully monitor the implementation of this new jurisdiction to ensure that it is functioning as intended and welcomes the Fair Work Commission’s decision to implement a triage system,” Abetz said in a statement.

Labor's acting spokesman for employment Doug Cameron said the commission had the power to dismiss frivolous or vexatious claims and “any attempt to dilute the new powers or create another level of bureaucracy” would be a backward step.

“While there will always be particular interests who complain that dealing with bullying simply costs too much or is too difficult, Labor has successfully argued that the cost of not doing anything is far greater,” Cameron said.

Terri Butler, the employment lawyer vying to succeed Kevin Rudd as the member for Griffith, said businesses should welcome, not fear, the arrival of the commission’s new powers to deal with workplace bullying. Butler is a Maurice Blackburn Lawyers principal and Labor’s candidate for the looming by-election for the inner south Brisbane seat.

“I don’t think the commission’s going to be swamped,” she said, noting the law outlined a specific definition of repeated bullying behaviour.

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