BMO5567 Workplace Dispute Resolution
Assessment Task 2 - Research Task
Assessment Weighting 50 marks
You should only attempt one of the options that follow.
Each paper should be a single author effort.
The paper produced should be of approximately 3000 words, including references relevant legislation and cases.
The due date for submission of the paper to
[email protected]
is 11.59 Sunday 16 September 2018
Option 1: Freedom of speech, social media and workplace obligations
You will recall the article
https://
www.canberratimes.com.au/national/cricket-australia-sacks-worker-over-series-of-tweets-about-abortion-20180729-p4zuar.html
which appeared in the Canberra Times of Monday 30 July 2018 and was discussed in class the following day.
It raises the rights of employees to use social media to express their views, about issues which might affect their employer.
You are requested to conduct a literature survey to discuss the issue of free speech vs workplace obligations. You should focus upon Australian cases, the Fair Work Act and Enterprise Bargaining Awards. You may use international cases, legislation and awards for comparisons – but realising that such cases may not be relevant to Australia.
As an example (and this is a hypothetical) you might wish to look at the Victoria University EBA,
http://w2.vu.edu.au/HR/Employment/LIB/PDF/LIB10.PDF
. What are my rights/obligations in criticising the Western Bulldogs AFL team, given they are a partner of Victoria University?
Universities, and their use of EBAs, are a fruitful source of cases regarding an attempt to regulate speech regarding employers. See for example
https://theconversation.com/university-changes-to-academic-contracts-are-threatening-freedom-of-speech-66207
and
https://theconversation.com/academic-freedom-and-the-suspension-of-roz-ward-60375
Option 2: Workplace Bullying
The following text come from Russell Kennedy[1], a Melbourne Legal firm specialising in workplace issues. See
http://www.rk.com.au/insights/brodies-law-workplace-bullying/
On 31 May, 2011 the Victorian Parliament passed theCrimes Amendment (Bullying) Act 2011, referred to in the media as “Brodie’s Law”, amending the Crimes Act 1958. The purpose of the law was to alter the crime of stalking to include behaviour that is generally characterised as bullying.
Brodie’s Case
The law was developed in response to the case of Brodie Panlock, a 19-year-old woman who committed suicide after being severely bullied at work. Ms Panlock worked as a waitress at Café Vamp in Hawthorn from early 2005 until her death in September 2006. In that time, Brodie was subjected to recurring verbal and physical acts of bullying.
Her employer and several of its staff were fined under the existing occupational health and safety (“OHS”) laws. Brodie’s employer pleaded guilty and was fined $220,000. The company’s owner and three co-workers also pleaded guilty and were fined between $10,000 and $45,000 each. Brodie’s parents have since campaigned strongly to have Victorian law altered so that bullying behaviour can be punished by terms of imprisonment.
The new law
In the past, the definition of stalking included acts such as communicating with a victim via post or electronic devices, writing about a victim on the internet, following the victim, or keeping them under surveillance. The following has now been added to the definition of stalking:
·
Making threats to the victim; Using abusive or offensive words to or in the presence of the victim; Performing abusive or offensive acts in the presence of the victim; Directing abusive or offensive acts towards the victim; and Acting in any other way that could reasonably be expected
o To cause physical or mental harm to the victim, including self-harm; or
o To arouse apprehension or fear in the victim for his or her own safety or that of any other person.
The definition of “Mental harm” includes psychological harm and suicidal thoughts.
These are very broad categories that cover a wide range of actions that could easily cover behaviour which occurs in the workplace.
Effect on Victorian employers
The new law applies throughout Victoria including, but not limited to, workplaces. If an employee or Director aids and/or is complicit in the bullying they could be held responsible for the conduct of other employees under the new stalking law. Prosecution of a worker under theCrimes Actwill not prevent employers from being prosecuted and fined under the OHS laws.
Employers are advised to implement policies and training and to monitor behaviour to prevent bullying in the workplace. Under the new laws employers must be proactive and educate workers of the consequences they face for bullying their co-workers. Employees who engage in bullying and Managers or other employees who are aware of the bullying and aid or are complicit could face terms of imprisonment of up to 10 years under the new changes.
So the issue of bullying is not primarily covered by Workplace legislation. Whilst bullying is a criminal act, it often occurs in the workplace.
I would like you to discuss how your workplace (if relevant) handles issues of bullying. How have other similar industries addressed the issue. What can we learn from the international experiences? Is cyberbullying an issue in workplaces?
Once again, you should focus upon Australian cases. You may use international cases, legislation and awards for comparisons – but realising that such cases may not be relevant to Australia
[1] As an aside I serve on the Governance Committee of Jewish Care Victoria. Russell Kennedy provides paid legal advice to the committee