ACCI warns of vexation claims under new anti-bullying laws

The new bullying ban, imposed by the former Gillard government, will give workers the right to seek an apology, a transfer or a change of roster by complaining to the government's work rights referee, the FWC.

But bosses yesterday warned that workers could abuse the system to blackmail them for "go-away money''.

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Master Builders Australia chief executive Wilhelm Harnisch said employers would have to prove they had not bullied a worker.

"This is going to be a nightmare for employers,'' he said.

"It is often going to be cheaper for employers to agree to pay 'go away' money than deal with the matter because going through the courts is timely, costly and there is always risk of damage to the reputation.''

“A nightmare for employers” ... Wilhelm Harnisch, Chief Executive Officer, Master Builders Australia. Source: News Limited

The FWC admits in its official guidelines for tribunal members and mediators that complaints could result in "unwarranted damage'' to people's reputations.

It says the FWC must deal with bullying in an "open and transparent'' manner.

"(FWC) members and staff should also be conscious of the potential for such matters to result in unwarranted damage to the reputations of individuals and unnecessary publication of sensitive personal material, including medical information,'' the guidelines state.

The Australian Chamber of Commerce and Industry warned that employees could "cause a lot of damage'' by lodging vexatious complaints.

"Anyone who feels they are being bullied is going to be able to make a $65 application and the commission must start dealing with it within 14 days,'' ACCI workplace policy and legal affairs director Daniel Mammone said yesterday.

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The federal government's work rights referee has not hired any extra staff to deal with the thousands of complaints expected to be lodged from January 1.

The FWC will even train its staff in "personal resilience'' to prepare for an expected dobbing deluge.

The FWC has been given new powers to order bosses or workers to stop bullying behaviour.

Volunteers, work experience students and even customers will be caught up in the new system, which also covers employees, contractors and subcontractors and outworkers.

Anyone who "reasonably believes that he or she has been bullied at work'' must pay $65 to apply to the FWC for an order to stop bullying.

The FWC cannot award compensation, impose fines or order that a sacked worker be reinstated.

But complainants can still lodge duplicate claims with state and territory tribunals that can order compensation.

The FWC stresses that "reasonable management action'' does not count as bullying.

"The concept of bullying conduct is defined broadly but must involve repeated unreasonable behaviour while the worker is at work, and create a risk to health and safety,'' it states.

"It does not include reasonable management action taken in a reasonable manner''.

Before making a stop-bullying order, the FWC must find there is a risk that the bullying conduct will continue by the same individual or group.

Complainants will need to name the alleged bully, give an example of the bullying behaviour, explain when it started and how often it was repeated, and whether they reported it to management.

They must specify if they want an FWC order to "prevent further bullying'', counselling, an apology, a transfer or a change of roster.

Workers or bosses accused of bullying will then have to fill in a form defending their actions - but will not have to answer questions if they believe answers "may be self-incriminating''.

The questions include, "Were you aware that the worker felt you were bullying them at work?'' and "What do you know about how the worker felt?''

Employers will also have to complete a form, responding to any allegations.

The FWC fielded nearly 14,000 complaints of unfair dismissal last year - yet just 20 workers won their jobs back after being unfairly sacked.

The FWC annual report shows it gave only 20 orders of reinstatement during 2012/13.

National Union of Workers spokesman Gary Maas said workers could wait nine months to have an unfair dismissal case heard.

"It defies all logic to think that in all of Australia only 20 people were sacked unfairly last year and wanted their job back,'' he said.

"Even after the abolition of Work Choices, it is nearly impossible to get your job back - regardless of the circumstances of your termination, your length of service, and any appeal process.''

An FWC spokeswoman said 90 per cent of unfair dismissal cases were settled or withdrawn before reaching the tribunal.

She said 161 workers won their jobs back after conciliation.

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