Bullying endemic in councils, Fair Work turns staff away

There are calls for reform of a legal loophole that sees council staff affected by bullying denied access to the Fair Work Commission.

The local government sector ranks among the top of all sectors for worker compensation claims of bullying according to the national work health and safety and workers’ compensation policy developer Safe Work Australia, an analysis by Government News shows.

According to Safe Work Australia data, workers compensation claims involving alleged bullying in local government were among the second highest of all sectors in 2017, with 42.2 claims per 100 million hours worked in 2017, up from being the third highest in 2016.

Despite this, two legal loopholes are seeing many local government employees without the recourse of the Fair Work Commission.

Most councils in Western Australia, NSW, Queensland and South Australia are excluded from the FWC’s purview, while councils in the other states are excluded if they don’t meet the legislation’s requirement of being a “constitutional corporation,” which requires they be classified as a trading or financial corporation.

Alex Grayson

Alex Grayson, a principal employment lawyer at Maurice Blackburn whose clients regularly include council professionals with claims of bullying, has raised concerns that local government employees in her jurisdiction of NSW don’t have access to the federal FWC.

This lack of access is resulting in employees’ rights being significantly diminished, Ms Grayson says.

“There are significant gaps in protections against bullying for all local and state government employees in New South Wales that need to be addressed by legislative reform,” Ms Grayson says in a recent submission to a parliamentary inquiry.

Last year, the FWC dismissed an application for a stop-bullying order from an acting CEO and elected councillor from Burnside City Council in South Australia.

In his reasoning, FWC deputy president Peter Anderson deemed the City of Burnside is not a “constitutional corporation” under the Fair Work Act.

Sheila Freeman

Sheila Freeman, a bullying consultant who specialises in local government, has raised concerns that the same deficiencies in the federal system that impacted the City of Burnside significantly limit employees’ rights.

“Fair Work is not fair for a variety of reasons but in particular if someone doesn’t have any income to substantiate that they work in a constitutionally covered business then they can’t access the Fair Work jurisdiction,” she told Government News.

Ms Grayson says the inability of council staff to access Fair Work is significantly limiting the recourse available to them and exacerbating bullying in the workplace, as well as resulting in great personal distress for some clients.

She says:

“There are significant barriers to having bullying issues dealt with swiftly or proactively for these individuals and even less ability to have council’s actions reviewed by an independent tribunal.”

“While I can help people with the internal mechanisms, if that’s not done satisfactorily they can’t get access to an independent tribunal to try to repair relationships or get a compensatory outcome. It’s a very difficult situation to have little or no rights.”

Although council staff can still make a bullying complaint to their employer or to their state authority, such as Safe Work NSW, Ms Grayson says this action is futile if the state authority chooses to take no action.

Separately, in some circumstances a worker’s compensation claim can be made through an insurer if the individual has suffered a psychological injury as a result of bullying and requires treatment or time off work. This can be done even if an employee is still employed by the council, according to Ms Grayson.

She also reports that many employees feel that they have to resign to escape from bullying.

Legislative reform needed

Legislative reform is urgently needed to afford better protections to local government staff affected by workplace bullying, Ms Grayson says.

She points to Queensland where the state government recently closed this anomoly with an equivalent jurisdiction for local government and public sector employees so they can seek stop-bullying orders.

Ms Grayson is calling for the NSW Government to introduce legislation similar to this or the Federal Government’s Fair Work Act. This would provide an early response mechanism where employees could access a stop-bullying order designed at addressing issues before employees became too affected or feel they have to resign.

Call for compensation

However, the federal Fair Work Act itself also needs to be amended, Ms Grayson argues, so the system is able to offer compensation. Currently, the only available remedy is a stop-bullying order.

“Where someone can’t resolve bullying and they become unwell because of it, they should be able to get compensation to allow them to move on while they recover and get other employment,” Ms Grayson said.

“I would like to see a well-resourced, independent jurisdiction for all employees to try to resolve their workplace issues, and if they’re not capable of resolution, where they can seek compensation for the harm that has occurred to them.”

Ms Freeman is similarly calling for the jurisdiction of the FWC to extend to all councils.

She is also arguing for an overhaul of the internal bullying grievance system in local government so that all complaints must be investigated externally.

“I have found that in alleged bullying complaints that have been investigated internally, both the complainant and the alleged bully have not always been afforded natural justice.”

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6 thoughts on “Bullying endemic in councils, Fair Work turns staff away

  1. I have no faith in the FWC.

    As a victim of workplace bullying in a local council I can concur that something needs to be done. The internal bullying grievance system did nothing as it was controlled by the CEO & Senior Management.

    They knew the person was bullying & sexually harassing staff, yet allowed the bully to continue working at the council.

    When it was escalated to FWC, the FWC were not prepared to fight & their only assistance was to sign a pathetic non-disclosure agreement the council offered.

    Something needs to change to prevent these bully councils from getting away with this shocking behaviour & unfortunately it’s not the FWC.

  2. It is interesting to note that there is no mention of council staff bullying of ratepayers – which is routine for the successive managements in my local council. Yet, there is no means by which ratepayers can hold council management to account for this bullying. Council’s Code of Conduct is so vague and weak that it is not worth the paper on which it is printed. Requests to be provided with the level/type of criteria required to establish that a breach of Council Code of Conduct has occurred are met with the written reply, “There will be not further correspondence on this matter”.
    The Ombudsman and Minister for Local Government are a waste of space existing only to ping pong responsibilities between them – and then back to the ratepayer – even when this involves local council’s long-term breaches of NSW rating legislation. Council management in NSW is a sacred cow as far as state government is concerned.

  3. I agree with Ted, also as victim of workplace bullying in a local council, they also knew the person bullying was well known for, and yet the bully still continues to work for council.

    When my compliant was escalated through the council process nothing was done , as it was controlled by the CEO and Management, which appeared to be just a process to protect them and not deal with the issues.

    It should be handled by an independent body to ensure all parties are dealt with fairly.

  4. Compensation??? I would be rich if I was compensated by every bully in my working life….this countries a joke….breeding snowflakes…

  5. Four points of response on this most interesting subject and article.
    First, the Fair Work Act does need to be amended, depending upon your viewpoint or bias. However, it can only operate so far as federal legislation has scope given its basis for ‘almost’ nationalising workplace relations was the corporations, territory and external affairs powers of the Australian constitution.
    Secondly, it is completely arguable that councils in particular states, or rather their employees, could have standing to take an allegation of bullying to the Fair Work Commission if an appropriate argument was put forward on their behalf, despite a one-off decision of a single Commission member that is not going to be the final word on the issue. Have a look at each state’s local government Act for a start. As for NSW, local councils are given a “body politic of the State” status so it would be a higher hurdle to overcome so as to access the Commissions jurisdiction, nonetheless there is an argument that could be made.
    Thirdly, the Commissions ‘stop bullying jurisdiction’ was not purposefully enacted to result in ‘go away money’ being paid or compensation being awarded, rather it was to identify if an issue exists, deny specious allegations and salvage an ongoing employment relationship. Penalties can be awarded in that jurisdiction if a stop bullying order is breached and an employee may seek substantive relief at the Federal Court level that includes compensation for some form of harm. Alternatively, and as is more commonly observed, workers compensation insurance may be payable if an employee is injured in the course of their employment.
    Finally, there is a plethora of state and territory tribunals to lodge a complaint about workplace behaviour and we have various additional or alternative dispute resolution processes that can be utilised to resolve such matters in a timely and cost-effective manner and often without the need for solicitors.

  6. It would appear that the naming of the actual physical bullying behaviour of councils is to remain hidden… Similar reaction when I contacted the ombudsman’s office. All fired up to help until they asked which council was involved and then suddenly they were ‘busy’ and refused to even put my concerns through to the ombudsman.

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