Making an application

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Introduction

See Fair Work Act s.789FC

A worker who reasonably believes that he or she has been bullied at work may apply to the Fair Work Commission for an order to stop bullying.

An application for an order to stop bullying made to the Commission must include a completed and signed application form (Form F72).

There is no timeframe for a worker lodging an application for an order to stop bullying.

Application fee

An anti-bullying application must be accompanied by payment of the prescribed fee (or an application to waive the prescribed fee)^[1]. Failure to pay the filing fee or apply for a waiver at the time of making the application, may result in the Commission finding that the application has not been validly made.^[2]

Making an application to the Commission for an order to stop bullying is a workplace right protected under the general protections provisions of the Fair Work Act 2009 (the Fair Work Act).

Link to application form

Form F72 – Application for an order to stop bullying

All forms are available on the Forms page of the Commission's website.

Link to waiver form

Form F80 – Waiver of application fee

All forms are available on the Forms page of the Commission's website.

Behaviour which occurred before 1 January 2014

Workplace bullying behaviour which took place before the commencement of Part 6-4B of the Fair Work Act on 1 January 2014 can be taken into consideration by the Commission. The anti-bullying provisions of the Fair Work Act envisage 'future action on past events', and cannot properly be characterised as retrospective. Applicants can rely upon pre 1 January 2014 conduct but need to demonstrate future risk.^[3]

What is a reasonable belief?

An applicant under s.789FC must not only be a worker but must be one who ‘reasonably believes that he or she has been bullied at work’. The expression ‘reasonable belief’ and similar expressions are utilised in a wide variety of contexts by the statutory and common law. It is clear from cases decided in those differing contexts that not only must the requisite belief actually and genuinely be held by the relevant person, but in addition the belief must be reasonable in the sense that, objectively speaking, there must be something to support it or some other rational basis for the holding of the belief and it is not irrational or absurd.^[4]

Amending an application

Section 586 of the Fair Work Act provides a power for the Commission to correct or amend an application, or waive an irregularity in the form or manner in which an application is made.^[5]

An applicant can apply to the Commission to amend an application if they have made a mistake on the form such as misspelling the name or not providing the full name of the employer. In certain circumstances, this power may also be used to substitute the name of the employer.^[6]

Case examples

Application to amend application refused - New application can be made

Mekuria v MECCA Brands Pty Ltd t/a Mecca Cosmetica and Others

[2019] FWCFB 2771 (Hatcher VP, Sams DP, Hampton C, 26 April 2019).

Decision at first instance [2018] FWC 6486 (Lee C, 20 November 2018).

Facts

The proceedings in this matter went forward entirely on the basis of bullying allegations against a clearly identified group of individuals, and Mecca responded to the case on this basis. It was only when Ms Mekuria was confronted with the difficulty of demonstrating a future risk of bullying by those individuals in the face of the range of initiatives taken by Mecca that, for the first time and on the day of the hearing, she decided to raise a series of new allegations against other individuals for the apparent purpose of prolonging the proceedings. One of the letters sent to the Commission on the morning of the hearing sought some new orders against her ‘supervisor and manager’.

Outcome

The Full Bench refused to allow the application to be amended to include other individuals.

Relevance

The Full Bench held that Mecca was in no position to respond to new allegations. More importantly Ms Mekuria’s original application for orders to stop bullying by the identified group of individuals was never sought to be amended in any appropriate or procedurally fair fashion. The Full Bench confirmed that Ms Mekuria’s new allegations could be addressed via a fresh and separate anti-bullying application if she wished to pursue them.

References

^[1] Fair Work Act s.789FC(4).

^[2] Druett v State Rail Authority of NSW & Ors [2007] AIRC 805 (Lawler VP, 19 September 2007) and Atanaskovic Hartnell Corporate Services Pty Ltd t/a Atanaskovic Hartnell v Kelly [2017] FWCFB 763 (Hatcher VP, Sams DP, Hunt C, 15 February 2015)

^[3] Re Ms K McInnes [2014] FWCFB 1440 (Ross J, Hatcher VP, Hampton C, 6 March 2014).

^[4] Amie Mac v Bank of Queensland Limited and Others [2015] FWC 774 (Hatcher VP, 13 February 2015) at para. 79.

^[5] Fair Work Act s.586; see Narayan v MW Engineers Pty Ltd [2013] FWCFB 2530 (Ross J, Sams DP, Bull C, 29 April 2013) at para. 6, [(2013) 231 IR 89].

^[6] See for e.g. Djula v Centurion Transport Co. Pty Ltd [2015] FWCFB 2371 (Catanzariti VP, Harrison SDP, Bull C, 12 May 2015) at para. 28.

Updated time

Last updated

02 October 2019

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