The first day of 2014 will see the beginning of a new jurisdiction to tackle the problem of workplace bullying. Here to discuss the new laws and their implications is Andrew Stirling, who is a Senior Associate in the Workplace Relations Group at Allens, Andrew thanks for joining us.

Thanks Kate good to be here.

Now Andrew firstly why was there a need to create this anti-bullying regime?

Well I don' t think there was one trigger in particular, I think it's really based on a broad community perception that bullying has become a more widespread problem and that sort of led into a Government House of Representatives Committee reporting into workplace bullying in particular and this legislation is really their response to that report.

And Andrew what's going to happen on 1 January in relation to the new jurisdiction?

So from the 1st of January employees can start bringing claims under the jurisdiction basically, so they'll be seeking orders to stop bullying directed towards them in the workplace. Central to that will be this idea of reasonable management actions, so reasonable management action is not bullying and that's been an important point in the workers compensation and health and safety regimes for a long time. The Commission yesterday released a summary of its case management procedure, so at the moment really all we have that case management procedure and the laws; we're yet to see how it all plays out in practice.

Yeah exactly. Well are there any concerns at this stage about how it's going to work?

Look I think there are and I think they're really based on the big unknowns that come with this legislation. It's basically without precedent definitely in Australia, but also internationally and really when you're giving the Fair Work Commission such a broad discretion to make orders to stop bullying that can potentially impact quite substantially on a business and other employees in the business as well, that sort of leads to some of that concern and particularly when you have a situation where there are thousands of complaints made to health and safety regulators and workers compensation regulators around Australia each year a large number of which are turned away basically on the basis that there wasn't any bullying particularly where the regulator determines it was reasonable management action. I think there is genuine concern in corporate Australia that there is just going to be a flight of unmeritorious claims. Having said that we are looking for the silver lining and I think it will be better to have the Commission involved trying to bring the parties together, than it will be spend years fighting unsuccessful workers compensation claims, which can be a real burden. And also I think the Commission could be a useful independent circuit breaker if the employer is confident that there hasn't been bullying and they're just having trouble getting that message across to an employee.

Well Andrew you mentioned some of the issues that see, is there anything at this stage in your mind that can be done to improve the new regime?

There are, and we'll be making some submissions to Minister Abetz and the Government about some non-legislative measures that we see they could take to improve the regime. I think central to that and something that's been overlooked in terms of what I've seen publicly available is the role that the Fair Work Ombudsman will play in all of this. If you have the Fair Work Ombudsman and its employees out there fanning the flames, which they sometimes can, I think there's a real risk that there will be a greater flood of claims. I think it's important that their hotline employees, so the employees on the telephone are trained in the distinction between bullying and reasonable management action. And I think their guidance material on the website needs to be pretty clear about what the concept of reasonable management action is and I think it also needs to highlight that there's no compensation available here, I think that could really sort of lessen the number unmeritorious claims that might be around. The second part of the whole process is obviously when you get a claim to the Commission and I think the Fair Work Commission processes need to reflect the potential for premature claims and I think it's a good sign that they're proposing to gather information to deal with claims before they go to mediation and arbitration because that will give employers some chance, bit of a heads up and a chance to solve the problem before – before we head down the mediation or arbitration path. The trouble with that proposal I guess is we've seen similar sort of filtering processes in the past which haven't worked because the Commission is just reluctant to toss out claims that you know even have the slightest prospects of success. So I think mediation it will be a good thing in the Fair Work Commission because it will at least have some chance to repair relationships before we get to a trial, and if things go to a trial we really need to avoid getting bogged down in the same way that unfair dismissal cases have tended to get bogged down. So we really need if it does got to a trial there needs to be and we'll be suggesting that it be more like an urgent application process.

Well all those suggestions make sense and Andrew thanks for joining us.

Thanks Kate.

That was Andrew Stirling, a Senior Associate in the Workplace Relations Team at Allens. Now listeners if you have any questions for Andrew you can send them through either using the panel on your screen or otherwise via email to law@brrmedia.com.

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