Fair Work Commission

Orders to stop bullying

 See Fair Work Act s.789FF

The Fair Work Commission can make any order it considers appropriate (other than an order requiring a financial payment) to prevent a worker from being bullied at work by an individual or group of individuals.

Before an order can be made, a worker must have made an application for an order to stop bullying and the Commission must be satisfied that:

• the worker has been bullied at work by an individual or group of individuals, and
• there is a risk that the worker will continue to be bullied at work by the individual or group.^[1]

Where a finding of bullying conduct is made and there is some future risk, preventative orders would be expected to follow. Such orders would, in appropriate cases, establish the appropriate basis for future mutually safe and constructive relationships.^[2]

An order to stop bullying is directed at preventing the worker being bullied at work. The Commission is specifically prohibited from making an order requiring the payment of a pecuniary amount, so it cannot make an order requiring a respondent to pay an amount of compensation to an applicant. The anti-bullying laws are not directed at punishing past bullying behaviour or compensating the victims of such behaviour. It is directed at stopping future bullying behaviour.^[3]

Who can an order be made against?

Section 789FF of the Fair Work Act 2009 (the Fair Work Act) does not expressly state the entities that can be included in any order. However, it is likely that the provision empowers the Commission to make orders directed to applicants, the individuals whose behaviour has led to the application and their respective employer(s)/principal(s).

The orders are directed at the conduct leading to the finding of bullying behaviour and this would mean that the applicant and the individuals concerned could be subject to such an order.

The anti-bullying measures are primarily underpinned by the corporations power (s.789FD(3)). On the basis of the Work Choices Case^[4] and previous case law on the corporations power, that power will support regulation of the activities of a corporation and the imposition of obligations upon it, regulation of the conduct of its employees and regulation of others whose conduct is capable of affecting its activities.^[5]

The broad scope of the orders is also supported by the fact that a finding of risk to the applicant’s health and safety is required in any finding of bullying and the Explanatory Memorandum clearly contemplates orders being made against the relevant employer/principal(s).

Where the parties agree that orders should be made and the Commission is satisfied that bullying conduct has taken place and that there is a risk of further bullying, consent orders may be issued by the Commission.

What can be ordered

The power of the Commission to grant an order is limited to preventing the worker from being bullied at work, and the focus is on resolving the matter and enabling normal working relationships to resume.^[6]

The power to make orders is relatively broad and the Commission can made any orders that it considers appropriate (other than an order requiring the payment of a pecuniary amount) to prevent the workers from being bullied. In circumstances where an applicant worker is suffering from a medical condition that prevents a return to the workplace without some appropriate modifications, the Commission would consider including such measures within an order.^[7]

The range of orders that the Commission may make (as contemplated by the Explanatory Memorandum) include orders requiring:

• the individuals or group to stop the specified behaviour
• regular monitoring of behaviours by an employer
• compliance with an employer’s anti-bullying policy
• the provision of information and additional support and training to workers, and
• a review of the employer’s workplace bullying policy.^[8]

Orders will not necessarily be limited or apply only to the employer, but could also apply to others involved. Orders could be based on behaviour such as threats made outside the workplace, if the threats relate to work.^[9]

Orders that might be considered by the Commission in an anti-bullying application could deal with specific future conduct of relevant individuals, including the applicant. In addition, orders might be considered that go to the broader conduct within, and culture of, a workplace. These could include the establishment and implementation of appropriate anti-bullying policies, procedures and training, which would include confirming appropriate future conduct and behaviour.^[10]

Physical and/or functional separation in the workplace of a person who has alleged that they have been bullied, and those said to have engaged in bullying conduct is self-evidently one way of preventing future bullying, although it may be a last resort where other practical measures will not be effective. A requirement that the employer place the person who has alleged that they have been bullied in an alternative position (or, alternatively, that a person found to have engaged in bullying conduct be redeployed elsewhere) in order to achieve such separation may be a legitimate incident of an order of this nature.^[11]

The Commission is given wide powers to make preventative orders it considers appropriate. These powers must be informed by, but not necessarily limited to, the prior unreasonable conduct as found. However, any orders must be directed towards the prevention of the worker being bullied at work in the future by the individual or group concerned, be based upon appropriate findings, and have regard to the considerations established by s.789FF(2) of the Fair Work Act.^[12]

Matters dealt with in orders of the Commission have included:

• orders that individual parties:
  • not make contact with each other
  • only make contact via email during specific times
  • not attend certain premises
  • not denigrate or humiliate one another and behave in a way that is reasonable and professional
  • not deliberately or unreasonably delay the performance of work
  • maintain the confidentiality of the parties and their association with the terms of the order, or
  • refrain from making written and/or oral statements to each other or others that are abusive, offensive, or disparaging;
• orders for companies:
  • to provide all staff with anti-bullying training
  • to conduct training for all employees on appropriate standards of behaviour in the workplace, including a recommendation that the training be conducted by, for example, the Anti-Discrimination Commission
  • to ensure they have in place updated anti-bullying policies and complaints handling procedures
  • to commission specific training for management personnel who will be investigating complaints about workplace bullying
  • to implement, and actively monitor, the effectiveness of control measures identified in risk assessments, or
  • to arrange for a Work Safe inspector to attend meetings with parties.^[13]

What cannot be ordered

The Commission cannot order reinstatement or the payment of compensation or a pecuniary amount.^[14]

The proposition that any order which potentially requires some monetary expenditure on the part of the employer falls foul of the exclusion in s.789FF(1) of the Fair Work Act must be rejected; were it otherwise, the scope of the power in s.789FF(1) would be narrowed to the extent of substantially defeating its purpose. It would mean, for example, that the types of orders identified in the Explanatory Memorandum might not be able to be made because they would likely have the effect of the employer incurring some monetary cost.^[15]

An Order which has the effect of requiring the continuation of the payment of normal wages for work performed in the context of a continuing employment relationship does not fall within the exclusion in s.789FF(1) of the Fair Work Act.^[16]

If the worker who makes the application is no longer working at the work site where the bullying conduct occurred, and there is no longer a risk that the worker who made the application will be bullied, the Commission will not be able to make an order under the anti-bullying provisions.

Considerations

When deciding what should be contained in an order to prevent further bullying behaviour, the Commission must, to the extent that it is aware, take into account:

• any outcomes arising from an investigation into the matter by another person or body (whether that investigation is complete or not)
• any procedures available to the worker to resolve grievances or disputes, and any outcomes arising from those procedures, and
• any matters that the Commission considers relevant.^[17]

By taking into account these factors, the Commission can seek to ensure consistency with any action being taken by other bodies (such as WHS state regulators).^[18]

Outcomes arising from investigations by another person or body

A number of different persons and bodies have the power to deal with complaints of workplace bullying. The powers of each person or body and the way in which they deal with bullying complaints differ between organisations, as will the resulting remedies.

A worker who has made an application to the Commission for an order to stop bullying can also seek intervention by a WHS regulator under the WHS Act or the corresponding state or territory work health and safety laws.^[19]

WHS regulators may respond to complaints in a number of ways consistent with their own internal policies. Regulators may send inspectors to workplaces to investigate incidents, issuing prohibition or improvement notices, seeking enforceable undertakings or prosecuting alleged offences against work health and safety laws.

Workplace bullying which involves criminal behaviour may also be the subject of a complaint to and investigation by the police.

Any outcomes arising from an investigation by such a person or body, that the Commission is aware of, must be taken into account by the Commission when making orders.^[20]

Case example

Procedures available to the worker to resolve grievances or disputes

This refers to any internal complaint mechanisms that may be available to the worker to resolve their grievance at the workplace level, without the Commission’s involvement; such as under a work health and safety law or an enterprise agreement or award.

Some workplaces will have policies which contain specific provisions on workplace bullying, such as how it is to be prevented and what action should be taken if it occurs. These may be contained within an enterprise agreement or a code of conduct.

The availability of alternative procedures does not necessarily mean that an application for orders to stop bullying cannot proceed. The new provisions were introduced to address the difficulty many workers face in trying to find a quick way to stop bullying so they do not suffer further harm or injury. The individual right of recourse has been provided for persons who are bullied at work to help resolve the matter quickly and inexpensively.^[21]

Any matters the Commission considers relevant

If there are any other matters that the Commission considers to be relevant to the application, these must also be taken into account. This allows for other issues not specifically contemplated by the legislature to be taken into account where necessary, even though they don’t fall into one of the specific categories listed above.

This may include factors including:

• the applicant being on leave from the workplace
• that the individual(s) involved in the bullying behaviour are no longer in the workplace
• that the bullying behaviour occurred or was otherwise set in a particular earlier context that no longer operates
• positive initiatives put in place by the employer such as policies and procedures which have the effect of reducing whatever risk is otherwise present, or
• any other developments in the workplace.^[22]

Case examples

References