Anti-Bullying and Fair Work Commission Act

March 13, 2019

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The Fair Work Act 2009 (Cth) allows a worker in a constitutionally covered business, who
reasonably believes that he / she has been bulled at work to apply to the Fair Work Commission (Commission) for an order to stop the bullying.  The Commission has the power make any order that it deems appropriate (other than ordering a pecuniary penalty) to stop the bullying from continuing.

Who can make an application?

Any person who is:

  • a worker (a ‘worker’ is any individual who performs work in any capacity, including as an employee, contractor, subcontractor, outworker, apprentice, work experience student, trainee or volunteer); and
  • works in a constitutionally-covered business (which is most businesses); and
  • reasonably believes that he or she is being bullied at work.

What is bullying?

A person is bullied at work if:

  1. a) an individual or group of individuals repeatedly behaves unreasonably towards that
    person, or towards a group of workers to which that person is a member; and
    b) that unreasonable behaviour creates a risk to health and safety.

“Unreasonable behaviour” may include behaviour that is victimising, humiliating, intimidating or threatening.

Reasonable management action carried out in a reasonable manner is not bullying. However, if that management action goes beyond what is reasonable, or is not performed in a reasonable manner, it may be bullying. Reasonable management action may include:

  • performance of management processes;
  • disciplinary action taken due to misconduct;
  • Action taken as a result of unsatisfactory work performance or inappropriate work
  • Reasonable direction for employee to perform their duties;
  • Maintaining reasonable workplace goals and standards.

The Process

  1. The worker makes an application

To commence the claim, the bullied worker has to complete and submit the Commission Form F72.  There is no time limit for lodging the application but the worker must still be working at that business.

  1. After the application is lodged

The Commission has to ‘start to deal’ with the application within 14 days after it is submitted.

The Commission will then send an application to the employer, the alleged bullies and their
employers (if different) and their representatives. It will also require that the employer and the alleged bully complete and return their response to the claim.

  1. Dealing with the application

Once the commissioner has received all the information it will notify the parties of a time and date for them to attend a mediation, conference or hearing.  If the matter is sent to mediation then it can be resolved by agreement between the parties.  If it isn’t resolved at mediation it can proceed to a conference or hearing.  If a matter goes to a conference or hearing then the Commission will determine the application and make an order that the parties must follow.

The Commission will only make orders if it finds that:

  1. The worker has made a valid application;
  2. The bullying has occurred; and
  3. There is a risk of further bullying occurring

What sort of orders can be made?

The Commission has the power to make any order that it considers appropriate (other than
compensation orders) to prevent the worker from being bullied further at work.

The type of orders that are made by the Commission could include requiring the bully to stop the behaviour; requiring the bully to be monitored by the employer; compliance with, or review of, an existing bullying policy; and so on.

Any person or business who contravenes an anti-bullying order will be exposed to a civil penalty.  When considering the terms of the order, the Commission is required to consider whether there was / is any procedure available to a worker to resolve the grievances or dispute, as well as the final or interim outcomes of any other investigation (if applicable).  In the event that the matter is not brought to the employer’s attention prior to an application being made by the employee in the Commission, it may be difficult for the employer to investigate the matter, assess its validity and take the appropriate steps to resolve it. It could therefore be an unnecessary use of time and money in a situation where the matter could have been managed and resolved internally.

How should employers prepare themselves?

Implement an up-to-date workplace policy. This policy will need to set out the required
standards of behaviour and provide adequate procedure to identify and manage inappropriate behaviour. Importantly, employers need to comply with their own policy.
Inform staff about the policy and give them ongoing formal training on it so that they
understand their rights and obligations.

Encourage reporting. Employees who feel that they have been bullied, or have witnessed a co-worker being bullied should be encouraged to report it to a manager as soon as it occurs so that it can be dealt with.

Train managers so that they understand what to do if they get a complaint.
Investigate all complaints quickly and fairly. This may include conducting a thorough and fair
investigation of the complaint and taking disciplinary action if warranted.
Communicate the progress. In order to prevent an unwarranted escalation, the worker who
made the complaint should be kept informed of the action that is being taken.
Get legal advice when investigating complaints about bullying. This will help to ensure that the process remains impartial and that you are in the best legal position possible.

Paul Horvath and the team have extensive experience in work place bullying.  If you need advice regarding your particular situation, please email or contact our office on (03) 9642 0435.

Disclaimer: This article contains information of a general nature and should not be relied upon or taken to be legal advice. You should speak with a lawyer about your situation before applying any of this information.