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2015 Seminar Series

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On 24 September 2015, the Workplace Law team hosted a seminar at the Sydney Sea Life Aquarium in Darling Harbour.

A number of our valued clients from a variety of industries attended the event.  Workplace Law also had the pleasure of welcoming two Sydney FC players, including one of Workplace Law’s player partners, Jacques Faty, and team-mate Mickael Tavares.

(l - r) Mickael Tavares, Graham Arnold and Jacques Faty

The function took place in the Aquarium’s spectacular reef theatre which provided a floor to ceiling window where guests could observe sharks, sawfish and other amazing underwater sea life swimming behind our guest speakers, Senior Deputy President Jonathan Hamberger (SDP Hamberger) of the Fair Work Commission (FWC) and Mr Graham Arnold, Head Coach of Sydney FC.

Guest lecture on workplace bullying

SDP Hamberger delivered a discussion on workplace bullying in the context of the FWC’s jurisdiction to hear bullying complaints made by workers under the Fair Work Act 2009 (Cth) (the Act) since 1 January 2014.

Senior Deputy President Jonathan Hamberger

SDP Hamberger took a fresh look at the concept of bullying, noting that the definition of bullying from Wikipedia states that, “Bullying is the use of force, threat or coercion to abuse, intimidate, or aggressively dominate others.  The behaviour is often repeated and habitual.”  This definition indicates a requirement for the bully to have an intention to hurt and/or damage another person. 

However, the Wikipedia definition was contrasted with the definition provided in section 789FD of the Act, which provides:

(1) A worker is bullied at work if:
(a) while the worker is at work in a constitutionally-covered business:
(i) an individual; or
(ii) a group of individuals;
repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member; and
(b) that behaviour creates a risk to health and safety.

SDP Hamberger pointed out that in the Act's definition there is no mention of intention.  Therefore, in the FWC, bullying can occur without there being any actual intention to bully.

Of course, the SDP reminded the group that when a matter is brought before the FWC, it can make any order that it considers appropriate to stop further bullying.  However, the FWC cannot order monetary compensation.  

SDP Hamberger also reminded us that the FWC’s jurisdiction is limited, in that if a worker who brings a bullying claim has resigned or has been terminated from their employment, the application is unable to go anywhere because the purpose of the FWC’s power to make orders is to "stop bullying".  Therefore, an individual must continue to be engaged by that particular business (and therefore exposed to the bullying behaviour) when the stop bullying order is sought.

SDP Hamberger estimated that since the commencement of the jurisdiction, the FWC has consistently received an average of about 60 bullying applications per month. 

Out of these applications, SDP Hamberger noted:

  • About 20% relate to bullying between co-workers.
  • The most common industries in which workers lodged bullying applications were the clerical industry and the health and welfare industry.
  • Workers who made applications were also commonly on workers compensation.
  • In the majority of cases, the Applicant was unrepresented.
  • In the majority of cases, the business had an anti-bullying policy in place.
  • In the majority of cases, the Applicant had already made a complaint in the workplace.
  • In about 40% of applications, the worker and the business had been able to resolve the problem.
  • The cases commonly involved a significant overlap between workplace health and safety and workers compensation.

SDP Hamberger stated that since the inception of the jurisdiction, only a handful of anti-bullying orders had been made.  In SDP Hamberger’s own experience with the jurisdiction, he had not had any matters proceed to arbitration.  SDP Hamberger put this down to focussing on resolving the issues between the parties, rather than focussing on the allegations and responses from the parties.

SDP Hamberger also touched on the DP World Case, which we previously covered in our February 2015 e-update article.  SDP Hamberger noted that an important element to take from this case is that every workplace is different and employers should be flexible in their approach to dealing with issues of workplace bullying. 

SDP Hamberger offered the following practical insights:

  • The key to success in resolving workplace bullying situations is to try to prevent the situation arising in the first place.
  • Bullying allegations in his experience often arise as the result of poor response to a line manager’s management style. This meant that it was important for employers to appoint line managers carefully and on the basis that they are the right person for the role. It is also important that line managers have the right training and support to manage people.
  • Management should not wait for complaints to come to them. Instead, good management should be alert to the workplace environment so that problems can be identified and managed.There may be obvious indicators that something is brewing in the workplace, such as poor performance, absenteeism or a high turnover of staff.

SDP Hamberger reminded employers that workplace conflict is everywhere and employers should not be too judgmental in their approach as most of what gets labelled as “bullying” in the FWC really arises from poor interpersonal skills.  The employers who handle complaints well have better employee engagement and less litigation, which in turn means better operational results.

Guest lecture on team building

Graham Arnold was invited to share his thoughts on how to successfully implement cultural change and his experiences of building high performance teams.

Sydney FC Head Coach Graham Arnold

Graham noted that his position as Head Coach was not unlike that of a manager, in that his role is one of people management of his players (employees).  He stated that his aim is to get the best out of the players by setting high standards and adopting a ‘No Excuse Policy’.

Graham told the group that the most important step in implementing cultural change and to create a positive team culture is to ensure that all the people involved are on the same page and focused on the one goal. Ways of fostering a team culture include rewarding people for their performance and also allowing people to grow by delegating responsibility to them. He noted that in doing so, these things create an atmosphere where people want to come into work.

Graham explained that for him, a key part of building cultural change is continual communication with his players, ensuring that they are aware of what is expected of them and discussing what he can do to assist players to perform at the top level. He stated that trying to learn about the player as a person is an important part of the process for him, as it helps him determine how to coach the player to get the best out of him and to communicate what his expectations are.

In addition, Graham commented that good recruitment also plays an important part.  Having good support staff and people whom he could trust to manage important tasks, and who also have ownership in achieving the specific goal helps to build team culture as everyone is working together for a common purpose.

Reflecting on SDP Hamberger’s presentation on bullying, Graham noted the impact of social media, particularly on younger players.  He commented that everyone has an opinion in sport, and social media now provides an opportunity and place for people to comment (such as on blogs on the internet) with anonymity.  Graham stated that part of his role is to protect players from adverse criticism in those forums which may affect their thinking and, in turn, their performance.

Graham stated that good leadership commenced from the very top – creating stability in the Club from Board level to coaching staff and to players.  He concluded his presentation by noting that as Head Coach, he works hard to set the example of the level of commitment, and standards which he expects of the players and he expects that he will then receive the same in return.

After the formal part of the evening, our guests were able to enjoy a private walk around the Aquarium exhibits marvelling at the varied sea life on display as well as chatting about Sydney FC’s chances in the upcoming A-league season and Asian Champions League.

We take the opportunity to again thank our speakers SDP Hamberger and Graham Arnold and all of our guests for attending this informative and fun night.

Please subscribe to our E-updates to make sure you are invited to our next seminar.




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