Business leaders have criticised the federal government’s proposal to have workplace bullying complaints heard by the Fair Work Commission, saying the move will increase confusion and encourage “forum shopping”.
The Council of Small Businesses of Australia, the Australian Chamber of Commerce and Industry and the Australian Industry Group have expressed their concerns with the legislation, which could be passed by the end of March.
Workplace Relations Minister Bill Shorten said employers would be able to have their complaints heard within 14 days and employers could be fined up to $33,000.
A parliamentary inquiry recommended action against workforce bullying was dealt with at a federal level, rather than through lengthy legal means involving state and territory regulators.
The chief executive of COSBOA, Peter Strong, told SmartCompany research indicated bullying does not often take place within small businesses.
“The research shows bullies do not function in small business, rather they need a big business environment to behave the way they do.
“It also needs to be remembered that bullying in a small business environment is often done to the business owner as much as anybody else and the rights of the business owner must also be considered,” he says.
Strong says small businesses should be exempt from the legislation if it is passed, as the needs of small businesses should be considered separately.
“We believe there should be a small business industrial award in order to properly take into consideration the needs of small businesses,” he says.
Chief executive of the Ai Group, Innes Willox, said in a statement if the FWC was to deal with bullying complaints, this would “cause more problems than it solves”.
“There is a lot of misunderstanding of what workplace bullying actually is. Workplace bullying is a problem that primarily falls within the jurisdiction of work health and safety laws, which have a strongly preventative focus, and not industrial laws.
“The government’s proposal is likely to increase the confusion and increase disputation,” he says.
Willox says the FWC is not the right avenue to deal with workplace bullying and instead the government would be better off focusing on preventative measures.
“Work health and safety laws, regulations and codes are the most appropriate regulatory approach to address workplace bullying, not the Fair Work Act and the Fair Work Commission.
Instead, Willox says the government needs to focus on prevention, rather than legislation.
“Governments need to devote more resources to working with industry groups and other stakeholders to educate employers, employees and the community on what workplace bullying is and how it should be prevented and dealt with,” Willox says.
Equally critical was ACCI chief executive Peter Anderson, who said the proposal reflected a “worthy goal” but a “wider suite of industrial relations changes” were needed.
“Giving the federal IR commission jurisdiction over workplace bullying is a limited measure that crosses state laws and cannot be enforced.
“The Fair Work Commission is not a court and cannot prosecute breaches or enforce its decisions. On health and safety matters, state inspectorates and courts exercise that power,” he says.
Anderson says having a federal jurisdiction to receive complaints could prompt employees to abuse the system by “forum shopping”.
“Adding a specific federal jurisdiction to receive complaints potentially allows forum shopping and adds a layer of complexity for business and enforcement agencies,” he says.
Strong agreed, saying “forum shopping” is of particular concern to small businesses.
“This is always a concern, we talk about employers who get it wrong, but there are also employees who try to use the system to their advantage,” he says.