building australia

THE IMPACT OF THE NEW ANTI-BULLYING LAWS ON THE BUILDING AND CONSTRUCTION

INDUSTRY

A Presentation by Richard Calver

21 May 2014

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How many applications?

The General Manager of the Fair Work

Commission (FWC) estimated that

there would be 3,500 bullying

applications each year made to the

FWC. That would mean each quarter

the FWC was expected to process 875

applications

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REPORT

The first quarterly report of the FWC in

relation to its anti-bullying jurisdiction was

released on 23 April 2014. It showed that

151 applications had been received in the

first quarter 2014. This would put the total

expected for the year at around 600

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Money Talks

In my view there is a one word answer to the

question of lack of uptake: money.

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Money Talks – Lawyers’

Language

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Total Employment

Employment in the building and construction

industry totalled 1,021,900 in November

2013, or almost nine per cent of total

employment, and the industry is responsible

for over 8% of the economy’s output.

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Male Dominated Industry

Compared with other industries, the

construction workforce remains

overwhelmingly male at 88 per cent, with

over 99 per cent of construction trade

workers being male with the manifestation of

a “macho” culture, often evident in all the

wrong ways in a case I later explore.

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Heavy Concentration of

Contractors

There are an estimated 1 million

independent contractors operating in the

Australian economy with around one third

working in the building and construction

industry.

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Unique Industry

The industry is unique in the

characterisation of its industrial relations, an

issue central to the targeted behaviour

encapsulated in the new anti-bullying laws.

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IR Culture

The Cole Royal Commission

comprehensively documented the workplace

relations problems of the industry. It found

that unacceptable and unlawful behaviours

of unions in the commercial sector were a

systemic problem.

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Union Influence The marked influence of

unions in the industry

comes from their sway

in the commercial sector

where recently the CFMEU

black ban on Boral has

shown the powerful effect

of the unions on the

commercial success or

otherwise of industry

participants.

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The Bullies

Workplace bullying is not only directed at

workers by other workers. Workers can be

bullied in the workplace by ‘other people’

such as customers, and, particularly in the

building and construction industry, by union

officials.

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Myer Emporium Dispute

A blatant example of workplace bullying

directed at workers by a trade union

occurred during the Myer Emporium dispute.

A leaflet then published depicts pictures of

workers and their names, together with

demeaning descriptions, together with the

slogan ‘get rid of these scabs out of our

industry’.

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Myer Emporium Dispute

The workers were

named and their

faces were revealed

in the original poster

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Unacceptable Behaviour

The example of the bullying experienced in

unacceptable behaviours of this kind, the

personal vilification and humiliation of a

group of workers, throws light on two issues

which are pertinent to explaining the limited

direct effect of the bullying laws

in the building and construction

industry

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Compensation

The first relates to the issue of a jurisdiction

where no monetary compensation can be

made per s789FF(1) FW Act. This contrasts

with any compensation that may be payable

in the context of the cases taken in other

jurisdictions.

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Stop Bullying Orders

The second issue relates to s789FF(1)(b)(ii).

Pursuant to this provision for the Commission to

be able to make orders to stop bullying, it must be

satisfied not only that a worker has been bullied at

work by an individual or a group of individuals, but

also that there is a risk that the worker will

continue to be bullied at work by that individual or

group of individuals.

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Label of ‘Scab’

What was present is the label of ‘scab’ being

applied from a single incident where workers

exercise their rights not to take the industrial

action urged by the relevant union.

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Single Incident Not Bullying

One incident does not constitute bullying.

Although there is no single universally

accepted definition, it is generally agreed

that bullying is systematic and interpersonal

behaviour which may cause severe social

and psychological problems in the target.

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Bullying Requires ‘Repeated

Behaviour’

A worker is empowered to make an

application for an order to stop bullying, by

defining the term “bullied at work” to require

the individual or group of individuals to

“repeatedly behave unreasonably” towards

the complainant worker per s789FD(1)(b).

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Just one incident may indicate a culture

where bullying would occur

A case involving a WHS prosecution that

was intended to be a ‘practical joke’ but that

went horribly wrong shows how a single

incident may trigger other remedies but is

not ‘repeated’ behaviour. The incident was

motivated by the fact that the worker

assaulted was due to get married the next

day and the ‘egging’ of him was by way of

‘celebration’.

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Meaning of ‘Worker’

Pursuant to s789FC FW Act ‘worker’ is defined as having

the same meaning as in the Work Health and Safety Act

2011. Under that Act a worker is an individual who

performs work in any capacity, including as an employee, a

contractor, a subcontractor, an outworker, an apprentice,

trainee and a student gaining work experience or a

volunteer. Part of the ‘floodgates’ issue was that with the

additional number of subcontractors and contractors in the

building and construction industry, it was anticipated that

they would bring complaints or applications to the FWC.

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TRAINING

Training by Master Builders associations on

the new laws and the ways to prevent

bullying has been held in all States and

Territories.

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ADDRESSING THE CULTURE

In increasing awareness of bullying and in

requiring members to address issues of

culture which might engender bullying

conduct, Master Builders believes that the

new laws have had a lasting effect on the

building and construction industry.

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