24 March 2014
Anti-Bullying Hurdles for the Life Sciences
Practice Groups:
By Belinda Copley
Labour, Employment
and Workplace Safety
First Jurisdictional Decision for the Fair Work Commission's Anti-Bullying
Regime
Life Sciences
The Fair Work Commission’s (FWC) Anti-Bullying Regime opened its doors on 1 January
2014. The new Anti-Bullying Regime got off to a leisurely start with only 66 applications
being received in the first few months of operation. Applications are, however,
progressing and earlier this month the FWC determined its first jurisdictional objection to
an application for a FWC order to stop bullying1.
FWC has Power to Consider Pre-1 January 2014 Bullying Behaviours
In Ms Kathleen McInnes [2014] FWCFB 1440, the employer objected to the application
for a FWC order to stop bullying on the basis that the alleged bullying conduct occurred
prior to 1 January 2014, when the Anti-Bullying Regime commenced.
The FWC dismissed the employer's objection and confirmed that:

the objective of the Anti-Bullying Regime is to stop future bullying behaviour,
not to punish past bullying behaviour or compensate victims of bullying
behaviour

given the objectives of the Anti-Bullying Regime and the inability of the FWC
to attach any liability to past instances of bullying behaviour, the FWC has
jurisdiction to hear and determine applications involving alleged bullying
conduct which occurred prior to 1 January 2014.
Unique Challenges Faced by Employers in the Life Sciences Industry
While the FWC has the power to hear and determine applications involving alleged
bullying conduct which occurred prior to 1 January 2014, the FWC must determine that
the following conditions are satisfied before making any orders to stop the alleged
bullying behaviour:

the worker has been bullied at work

there is a risk that the worker will continue to be bullied at work.
The statistics released by the FWC confirm that a significant number of the applications
for FWC orders to stop bullying relate to alleged bullying by supervisors and managers.
Further, a high proportion of the alleged bullying behaviour occurred in a performance
management and/or disciplinary action context.
These statistics suggest that the employers defending the applications will rely on the
exemption in the Fair Work Act (Cth) 2009 that ‘reasonable management action carried
out in a reasonable manner’ does not constitute bullying.
Employers in the life sciences industry face a number of unique challenges in relation to
performance management and disciplinary processes which may create an additional
hurdle to overcome when seeking to establish that a management action was both
1
Ms Kathleen McInnes [2014] FWCFB 1440
Anti-Bullying Hurdles for the Life Sciences
reasonable and carried out in a reasonable manner. Some common challenges faced
include:

performance managing territory based sales representatives

a high incidence of global mobility with overseas supervisors and managers
managing local reports remotely

an increase in the travel requirements for local staff which minimises face to
face interactions and requires performance management processes to be
conducted electronically or by phone

highly attractive discretionary bonus schemes with eligibility tied to
discretionary managerial assessments

relatively high proportions of employees with long years of service and a high
incidence of toleration for their past underperformance.
The life sciences industry is also characterised by a number of environmental factors that
are conducive to bullying behaviours, including:

high pressure working environments

incentive based pay arrangements

key performance indicators (KPIs) relating to achieving competitive targets

work related travel and mandatory worker attendance at interstate and
international conferences and events.
Future-Proofing in the Life Sciences Industry
There are a number of actions that can be taken by life sciences employers to assist with
successfully establishing that the conduct in question was both a reasonable
management action and carried out in a reasonable manner:

training workers to ensure they understand the difference between bullying
and reasonable management action

clearly defining bullying and reasonable management action in relevant
policies

implementing a clear and effective internal complaint and grievance
handling policy and procedure

implementing a clear, flexible and effective performance management and
discipline policy

up-skilling managers and supervisors with the tools to confidently
performance manage and discipline workers in a 'reasonable manner' by
providing performance management training and guidance

including effective performance management processes as part of the
managerial related KPIs for managers and supervisors

encouraging the use of videoconferences, teleconferences, Skype etc as
part of remote performance management processes instead of an overreliance on email based feedback

providing early support and guidance to managers and supervisors in the
informal performance management and coaching stages – rather than
reserving assistance for formal performance management processes only
2
Anti-Bullying Hurdles for the Life Sciences

encouraging an environment where manager and supervisor territory and
interstate office visits are customary and not reserved for formal
performance management discussions

identifying specific environmental factors that may increase the likelihood of
inappropriate conduct in the workplace and devising appropriate risk
minimisation strategies.
While the up-take by workers seeking FWC orders to stop alleged bullying behaviours
has been initially low, the FWC has reported a high level of activity by workers in terms of
utilising the bullying help line (which on average receives more than 200 calls a week)
and the dedicated anti-bullying section of its website (which has received approximately
28,000 hits to date).2
As workers familiarise themselves with this new avenue to pursue workplace bullying,
employers in the life sciences industry can start future-proofing their performance
management and disciplinary processes to help minimise and defend applications for
FWC orders to stop alleged workplace bullying.
Authors:
Belinda Copley
belinda.copley@klgates.com
+61.7.3233.1281
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2
5 February 2014 Media Release Fair Work Commission Releases First Anti-Bullying Statistics
3