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2015–16 Major application types: Anti-bullying
adjournment
To end proceedings or to suspend them to another time or place.
appeal
To request that a decision of a single member of the Commission be reviewed by a Full Bench to determine if the decision made is consistent with the Fair Work Act 2009. An appeal can only be made on the grounds that an error of law or fact has been made. A person must seek the permission of the Commission to lodge an appeal by lodging a Form F7—Notice of Appeal.
bullying at work
Bullying at work, as defined by the Fair Work Act 2009, occurs when:
- a person or a group of people behaves unreasonably and repeatedly towards a worker or a group of workers while at work, and
- the behaviour creates a risk to health and safety.
Bullying does not include reasonable management action carried out in a reasonable manner.
bullying policy
A formal procedure outlining the processes used, including disciplinary measures, to resolve bullying in the workplace. A policy would normally include definitions of bullying, a worker's responsibility in relation to bullying and the step by step process that should be adopted when bullying is reported.
code of conduct
A set of rules and responsibilities that govern an organisation. A code of conduct generally sets out appropriate and inappropriate behaviour of employees within an organisation.
Commission
Abbreviation for Fair Work Commission.
Commonwealth
Refers to the Commonwealth government or an Australian territory.
conference
A private proceeding conducted by a Fair Work Commission Member.
constitutionally covered business
A constitutionally covered business is:
- a proprietary limited company
- a foreign corporation
- a trading or financial corporation formed within the limits of the Commonwealth
- the Commonwealth
- the Commonwealth authority
- a body corporate incorporated in a territory
- a business or organisation conducted principally in a territory or Commonwealth place.
It does not include sole traders, partnerships, some state government employees, corporations whose main activity is not trading or financial.
decision
A judgment or conclusion reached after considering the facts and law. A decision in relation to a matter before the Commission can include the names of the parties and will generally outline the basis for the application, comment on the evidence provided and include the judgment of the Commission in relation to the matter. A decision can be made by a single member or a Full Bench of the Commission. It is legally enforceable.
directions
Instructions given to the parties by the Commission that set out a timetable in accordance with which they must file in the Commission and serve on each other an outline of submissions, witness statements and any supporting documents.
evidence
Information which tends to prove or disprove the existence of particular belief, fact or proposition. Certain evidence may or may not be accepted by the Commission, however the Commission is not bound the normal rules of evidence. Evidence is usually contained within or attached to a witness statement or provided verbally by a witness in a hearing.
Fair Work Act 2009
The principal Commonwealth law governing Australia's workplace relations system. Go to the Fair Work Act 2009.
Fair Work Commission
Australia's independent, national workplace relations tribunal, established under the Fair Work Act 2009, from July 2009 to December 2012. Fair Work Australia assumed the functions of the Australian Industrial Relations Commission, and the Australian Fair Pay Commission and the agreement-making function of the Workplace Authority. Fair Work Australia was renamed the Fair Work Commission on 1 January 2013.
Full Bench
A Full Bench of the Fair Work Commission is convened by the Fair Work Commission President and comprises at least three Fair Work Commission Members, one of whom must be a Deputy President. Full Benches are convened to hear appeals, matters of significant national interest and various other matters specifically provided for in the Fair Work Act 2009.
harassment
Unwanted and offensive conduct or behaviour by a person or persons directed towards another person based on an attribute such as a person’s age, gender, race, religion or a disability. Harassment can be physical or psychological.
hearing
A public proceeding conducted by a Fair Work Commission Member. A hearing is generally more formal than a conference, and may be held if the matter can't be resolved at mediation, conciliation or conference.
jurisdiction
The scope of the Commission’s power and what the Commission can and cannot do. The power of the Commission to deal with matters is contained in legislation. The Commission can only deal with matters for which it has been given power by the Commonwealth Parliament.
jurisdictional objection
An objection to an application on the basis that the Fair Work Commission does not have jurisdiction to deal with the matter. A jurisdictional objection is not simply that the respondent thinks the applicant's case has no merit.
matter
A case or legal proceeding before the Commission.
mediation
An informal, confidential and voluntary process. It is one of the processes used by the Commission to facilitate the resolution of a grievance or a dispute between parties by helping them reach an agreement.
Member
A person appointed by the Governor-General to decide matters at the Commission. A Member may be the President, a Vice President, a Deputy President or a Commissioner.
non-constitutional corporation
An entity that is not a constitutional corporation. The following are not constitutional corporations:
- sole traders
- partnerships
- some state government bodies
- corporations whose activities do not include significant trading or financial functions (e.g. some charities).
order
An order is a ruling made by a Fair Work Commission Member after he or she hears your case. Once an order has been made, anyone bound by that order must follow it.
outcome
The end result of an application made to the Commission.
outline of submissions
A written document that clearly sets out the key elements of a case. All facts, information and evidence that you wish to bring to the attention of the Commission should be included in your outline of submissions.
partnership
An organisation in which two or more persons carry on a business together and it is not a constitutional corporation as defined.
party
A person or organisation involved in a matter before the Commission. A party is generally known as either an applicant or a respondent.
principal
A person or business that has entered into a contract for services with an independent contractor.
private enterprise
A business owned and operated by private individuals for profit, instead of by a government or its agencies.
procedural fairness
When persons are treated equally or fairly before the law (also known as due process). For example, procedural fairness occurs when both parties to a dispute have an opportunity to be heard or to defend themselves.
pty ltd
A proprietary limited company. A constitutionally covered business.
reasonable management action
In relation to an anti-bullying application, reasonable management action is the action or behaviour of management that is considered to be carried out in a reasonable manner. Reasonable management action does not constitute workplace bullying.
Reasonable management action may include:
- performance management processes
- disciplinary action for misconduct
- informing a worker about unsatisfactory work performance or inappropriate work behaviour
- asking a worker to perform reasonable duties in keeping with their job, and
- maintaining reasonable workplace goals and standards.
In each of these examples, if they are not carried out in a reasonable manner, then they could still be considered bullying.
Rules
service/to serve
A requirement to send a copy of a document (and all supporting documents) to another party or their representative, usually within a specified period. A person’s obligation to serve documents can be met in a number of ways. The acceptable ways in which a document can be served are listed in Parts 7 and 8 of the Fair Work Commissions Rules 2013.
sole trader
An organisation in which one person is responsible for the business.
WHS
Abbreviation for work health and safety.
WHS state or territory regulator
A body established by a state or territory government which regulates WHS laws in a particular state or territory. To find contact details for the regulator in your state or territory, go to the Enquiries page.
witness statement
A person who gives evidence in relation to something they saw, heard or experienced. A witness is required to take oath or affirmation before giving evidence at a formal hearing. The witness will be examined by the party that called them and may be cross examined by the opposing party to test their evidence.
worker
In relation to an anti-bullying application, the definition of a worker is drawn from the Work Health and Safety Act 2011. A worker can include:
- an employee
- a contractor or subcontractor
- a person employed by a labour hire company who is working at a particular business or organisation
- an outworker
- an apprentice or a trainee
- a work experience student
- a volunteer.
Only people who are considered to be workers may apply for an order to stop bullying at work.
workplace
A place where a person performs work.
workplace bullying
See bullying at work.
The Commission's anti-bullying jurisdiction, which commenced on 1 January 2014, enables a worker who believes he or she has been bullied at work to apply for an order to stop the bullying.
Under the Fair Work Act, a worker is bullied if:
An individual or a group of individuals repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member, and that behaviour creates a risk to health and safety.
To be able to apply for an order, a worker must work in a constitutionally-covered business.
The Commission is empowered to make any order it considers appropriate to prevent a worker from being bullied, other than an order requiring payment of money or financial penalty.
The Commission deals with anti-bullying applications differently from other types of applications, recognising the sensitivity and personal nature of the matters at hand, the ongoing working relationships and the potential for one or more of the parties to a matter to be experiencing mental health issues.
Figure 9: Anti-bullying — flowchart of the process
This flowchart outlines the process followed by the Commission in dealing with anti-bullying matters.
Performance
In 2015–16 the Commission:
- received 71,736 website hits regarding anti-bullying
- received 50,225 visits to the online eligibility quiz for anti-bullying applications
- dealt with more than 6,300 telephone inquiries
- received 11,806 website visits to the anti-bullying benchbook
- received on average 61 applications per month
- processed 734 applications
The number of anti-bullying applications and outcomes has been consistent since the jurisdiction commenced on 1 January 2014. In 2015–16, the Commission received 734 applications for orders to stop bullying. This compares with 694 in 2014–15 and 343 in the first six months of 2014. Three hundred and fifty two applications were withdrawn prior to proceedings, 191 were resolved during the course of proceedings and a further 108 were withdrawn after a conference or hearing and before a decision. Like the two previous reporting periods, less than eight per cent of applications (52) were finalised with a decision and seven applications were granted, compared with one in each of the two previous reporting periods.
Delivery
In 2015 the Commission conducted a review of the first 12 months of the operation of the anti-bullying case management process and identified a number of areas for further development and improvement. Throughout 2015–16 the Commission has commenced or completed work on each of those areas that were identified, including: improving the collection of data in relation to results and demographic information; undertaking some preliminary research into the relationship between anti-bullying applications and other applications to the Commission; improving the information available about the practical operation of the jurisdiction, by reviewing and updating information materials and developing a Virtual Tour; updating forms, and; considering how the Commission can further improve the support for parties suffering from mental health issues, including training options for both Members and staff.
Work in relation to these and other areas is ongoing as a key feature of the Commission's anti-bullying process is to monitor and improve the operation of the jurisdiction based upon experience.
Steps to dealing with matters
Under the Fair Work Act, the Commission has to start dealing with an anti-bullying application within 14 days of it being made. This year the Commission met the requirement for 100 per cent of applications, with the process usually beginning within the first 24 hours (see Table 26).
| Time taken to start to deal with matter (days) | |
|---|---|
| Median | 1 |
| 100th percentile1 | 5 |
1 100th percentile is the longest time (days) taken to deal with a matter.
Anti-bullying applications are assessed on lodgment by the Case Management Team, taking into consideration issues such as whether they fall within the Commission's jurisdiction and the nature of the alleged bullying, with the Panel Head then deciding how to progress them. The Commission also contacts the parties and sends a copy of the application to the employer and the person/s named in the application as having allegedly engaged in bullying behaviour. This provides an opportunity for them to respond.
Early withdrawal of applications
This year 32.3 per cent of applications were withdrawn while still with the Case Management team or the Panel Head. Another 15.7 per cent were withdrawn before any proceedings commenced. Factors that can lead to early withdrawal include identifying jurisdictional barriers to the application, the preventative focus of the potential orders and decisions to follow alternative ways to resolve the issues arising at the workplace.
Matters can also be resolved during these early stages. The response of the employer or the person/s named in the application as having allegedly engaged in bullying behaviour can be enough to satisfy the applicant. In this way, service of the application by the Commission can itself result in prompt resolution of the issues arising at the workplace.
| Finalisation of matters | 2015–16 | 2014–15 | 2013–141 |
|---|---|---|---|
| Application withdrawn early in case management process2 | 237 | 185 | 59 |
| Application withdrawn prior to proceedings3 | 115 | 122 | 34 |
| Application resolved during the course of proceedings4 | 191 | 191 | 63 |
| Application withdrawn after a conference or hearing and before decision | 110 | 118 | 20 |
| Application finalised by decision | 52 | 60 | 21 |
| Total | 705 | 676 | 197 |
1 The anti-bullying jurisdiction commenced on 1 January 2014, therefore this data relates to the date range 1 January 2014 to 30 June 2014.
2 Applications withdrawn prior to substantive proceedings — while the matter is with the Case Management team or Panel Head.
3 Includes matters that are withdrawn prior to a proceeding bei ng listed; before a listed conference, hearing, mention or mediation before a Commission Member is conducted; and before a listed mediation by a staff member is conducted. This also includes matters where an applicant considers the response provided by the other parties to satisfactorily deal with the application.
4 Includes matters that are resolved as a result of a listed conference, hearing, mention or mediation before a Commission Member or listed mediation by a staff member.
Mediation
When appropriate the Panel Head will refer an anti-bullying application for mediation by a staff conciliator. This year 37 such mediations were conducted, mostly by telephone.
Matters dealt with by Members
The great majority of matters that are not either resolved or withdrawn early in the process are dealt with by Members, either by conference or hearing. In most cases, Members will start with a preliminary conference to gain an understanding of the issues and stabilise relationships, and if necessary make directions for a hearing.
Of the matters resolved by Members, common outcomes included:
- undertakings about future behaviour
- clarification of roles, responsibilities and reporting relationships
- commitment by the employer to establish or review anti-bullying policies
- provision of information, additional support and training to workers
- the worker returning to work on agreed conditions
- agreed relocation of named individual and/or the applicant worker
Orders
Members must formally determine applications that are not withdrawn or resolved. If a finding of bullying behaviour is made and the Commission is satisfied that the behaviours will continue, a Member may make any order it considers appropriate to prevent the applicant from being bullied at work, other than an order requiring payment of a pecuniary amount. This year saw an increase in the number of matters where such findings, and subsequent orders, were made. The nature of these orders are necessarily specific to each particular matter but requirements have included:
- obliging certain behaviour to stop
- controlling communication at the workplace
- establishing new reporting arrangements
- establishing and monitoring proper standards of conduct
- establishing proper complaints procedures
- provision of relevant workplace bullying training and professional development
- creation of return to work plans
- reviewing internal anti-workplace bullying resources