False Claims: Fact or Fiction
Some employers believe that the present state of the economy is driving employees to make an increasing number of “false” bullying allegations. In our experience, there have been an increasing number of bullying claims over the last 6 months, but they are no more likely to be false, trivial or exaggerated.
There are a range of reasons that might motivate employees to allege that they have been bullied. For example, an employee may allege bullying due to increased work demands stemming from downsizing, or because their boss has started acting unreasonably as a response to increased pressure to meet sales targets. In the current economic climate, employees consider that another job will not be easy to get. If their working conditions are becoming unbearable, they will ask their employer to deal with the situation rather than decamp to another workplace.
We recommend that employers “assume nothing” when they receive a bullying claim. It is always possible that employees have more than one motivation for making a complaint in the workplace. However, rather than assuming an allegation is not made in good faith or is a “pre-emptive strike” against redundancy, we recommend that each allegation is treated seriously until its accuracy has been tested. That means investigating bullying allegations fairly and impartially, so that factual conclusions can then be made with rigour, and future decision-making is grounded and defensible.
How Ethical are your Employees?
This month, Roy Morgan research conducted its annual “Image of Professions” survey. It revealed that Australians believe health professionals to be the most ethical and honest employees. First were nurses, with 89% of Australians aged 14 and over rating nursing to be the most ethical and honest profession. Nurses were closely followed by pharmacists (84%) and doctors (82%).
There were no surprises at the other end of the spectrum: car salesman scored a measly 3%, while advertising people (6%), newspaper journalists (9%), and estate agents (10%) fared only slightly better.
To some organisations, ethics is optional – something to be considered after results are achieved and risks managed. However other organisations are increasingly seeing the ethical character of the organisation – and of its people – as a fundamental part of the licence to do business. They believe that their shareholders and stakeholders require best practice, not minimal legal compliance.
Worklogic Consulting is currently working with a large employer to implement its Ethics Statement, running staff training sessions, developing guides for managers and creating on-line training content. We are working to ensure that all staff understand the employer’s expectations for behaviour (both in-house and when dealing with clients), that managers are supported to respond to unethical behaviour, and that there is no excuse for breach. This project follows the development of the organisation’s Code of Ethics, which was project-managed by Worklogic Consulting last year.
If the Roy Morgan survey is a true reflection of the ethical character of the professions, you can trust health professionals – as well as school teachers (76%), engineers (69%) and Judges (68%) – to comply with your policies, avoid fraud and bullying, and make decisions that are consistent with the expectations of the employer and of the organisation’s stakeholders. However those of us who employ financial planners (25%), public servants (28%), lawyers (30%) or business executives (17%) might have cause for concern!
Alternate Dispute Resolution Under the Fair Work Act 2009 (Cth)
On 1 July 2009, much of the Fair Work Act 2009 (Cth) will come into force. Clients have recently asked us what changes we can expect to see in industrial dispute resolution, as the Australian Industrial Relations Commission (“AIRC”) becomes Fair Work Australia (“FWA”). While the Fair Work Act 2009 (Cth) has not turned back the clock to pre-WorkChoices, there are significant changes in relation to dispute resolution that employers must become aware of.
Deputy Prime Minister Gillard announced in November 2008 that FWA “will be able to exercise a full suite of alternative dispute resolution powers”. Although the phrase “alternative dispute resolution” (“ADR”) is not used anywhere in the Fair Work Act 2009 (Cth), the new Act refers to FWA and private providers conducting mediation, conciliation and arbitration, holding conferences, making recommendations and expressing opinions.
FWA will have broader powers to conduct ADR, in a greater number of circumstances than the AIRC under WorkChoices. All AIRC Commissioners will move across to FWA and their ADR functions will continue. FWA has also employed full-time conciliators in all capital cities, who will work mainly on unfair dismissal claims.
There are various disputes under the Fair Work Act 2009 (Cth) in which FWA will have specific ADR responsibilities, including the following.
(1) Disputes under the Model Dispute Resolution Processes
Where a modern award, enterprise agreement or contract of employment includes a term that provides for FWA to deal with a dispute, then FWA:
• must not exercise any powers limited by the term;
• may arbitrate, if the parties have agreed that FWA may arbitrate the dispute;
• may deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion;
• must not make a decision that is inconsistent with the Act, or an applicable fair work instrument; and
• may deal with a dispute only on application by a party to the dispute.
(2) Disputes in bargaining for, or varying, collective agreements
As part of FWA’s general role in facilitating bargaining, a bargaining representative for a proposed enterprise agreement can apply for FWA to deal with a dispute about the agreement if the bargaining representatives for the agreement are unable to resolve the dispute.
The Fair Work Act 2009 (Cth) does not give FWA a general power to arbitrate in enterprise bargaining matters. However, if it has been empowered to arbitrate by the parties, then in the course of arbitration, FWA may make an order that particular content be included or not included in the proposed enterprise agreement.
FWA can deal with – but not arbitrate – a dispute about the proposed variation of an enterprise agreement, if the employer and the affected employees are unable to resolve the dispute.
There are other detailed provisions in the Fair Work Act 2009 (Cth) about good faith bargaining and the appointment of bargaining representatives, and to make compulsory orders if a good faith bargaining process ultimately fails.
(3) Unfair Dismissal and Unlawful Termination
The provisions of the Fair Work Act 2009 (Cth) about unfair dismissal are similar to the Workplace Relations Act 1996 (Cth) in most respects. FWA is required to conduct a private conference or hold a hearing in relation to an unfair dismissal matter if, and to the extent that, the matter involves facts the existence of which is in dispute. FWA must take into account the wishes of the parties to the matter as to the way in which it considers the application and informs itself in relation to the application. FWA may decide at any time (including before, during or after conducting a conference in relation to a matter) to hold a hearing in relation to an unfair dismissal matter, if it appropriate to do so. Similar provisions apply in relation to unlawful termination (the termination of an employee’s employment for certain prohibited reasons, such as temporary absence from work because of illness or injury, or industrial activity).
In unlawful termination and unfair dismissal cases, where FWA has granted permission for a person to be represented by a lawyer or paid agent, it may issue a costs order against the lawyer or paid agent in certain circumstances where that person encouraged an application which had no reasonable prospects of success.
(4) Disputes about Freedom of Association and Discrimination
FWA can also deal with disputes about an employee’s dismissal or detrimental treatment, where the employer’s conduct was allegedly in contravention of the freedom of association and/or discrimination provisions of the Fair Work Act 2009 (Cth). Applications will be made by the dismissed person or an industrial association that is entitled to represent that person’s interests. FWA must conduct a conference (in private, where the dispute is about a dismissal), and may mediate or conciliate, or make a recommendation or express an opinion.
In dealing with a dispute about a dismissal which allegedly breaches freedom of association or discrimination provisions, FWA must advise the parties if it considers that a court application in relation to the dispute would not have a reasonable prospect of success.
(5) Disputes about Right of Entry
FWA can deal with disputes about right of entry by arbitration, including by making various orders such as an order imposing conditions on an entry permit. FWA may also deal with a dispute about right of entry by mediation or conciliation, or by making a recommendation or expressing an opinion.
FWA can deal with a right of entry dispute either on its own initiative, or on application by various people to whom the dispute relates. In dealing with the dispute, FWA must take into account fairness between the parties concerned.
(6) Disputes about Stand Down
FWA has similar powers in relation to disputes over stand down as it does for right of entry. FWA may deal with a dispute over stand down by arbitration, however it can only deal with a stand down dispute on application by an employee who has been or is going to be stood down, or an employee who has taken leave to avoid stand down, or an employee representative of such an employee, or an inspector.
Conduct of Disputes at Fair Work Australia
With respect to conferences, FWA can direct a person to attend a conference at a specified time and place. A conference is conducted by a FWA Member or a delegate. The conference must be conducted in private, unless the person responsible for conducting the conference directs that it be conducted in public. FWA may also hold a public hearing in relation to a matter, or a private hearing in certain circumstances.
In any matter before FWA, a person may be represented by a lawyer or paid agent only with the permission of FWA, except as provided by section 596(3) or the procedural rules. The Fair Work Act 2009 (Cth) restricts FWA’s decision-making in this regard, allowing lawyers and paid agents only if certain requirements are met. The Act does however allow employees and officers of a party, or a bargaining representative, to appear without consent. The challenge for FWA will be to ensure that the new unfair dismissal procedure and other proceedings work effectively without the assistance of lawyers, while maintaining procedural fairness for all parties.