To end proceedings or to suspend them to another time or place.
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, as defined by the Fair Work Act 2009, occurs when:
Bullying does not include reasonable management action carried out in a reasonable manner.
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.
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.
Abbreviation for Fair Work Commission.
Refers to the Commonwealth government or an Australian territory.
A private proceeding conducted by a Fair Work Commission Member.
A constitutionally covered business is:
It does not include sole traders, partnerships, some state government employees, corporations whose main activity is not trading or financial.
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.
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.
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.
The principal Commonwealth law governing Australia's workplace relations system. Go to the Fair Work Act 2009.
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.
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.
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.
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.
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.
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.
A case or legal proceeding before the Commission.
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.
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.
An entity that is not a constitutional corporation. The following are not constitutional corporations:
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.
The end result of an application made to the Commission.
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.
An organisation in which two or more persons carry on a business together and it is not a constitutional corporation as defined.
A person or organisation involved in a matter before the Commission. A party is generally known as either an applicant or a respondent.
A person or business that has entered into a contract for services with an independent contractor.
A business owned and operated by private individuals for profit, instead of by a government or its agencies.
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.
A proprietary limited company. A constitutionally covered business.
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:
In each of these examples, if they are not carried out in a reasonable manner, then they could still be considered bullying.
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.
An organisation in which one person is responsible for the business.
Abbreviation for work health and safety.
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.
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.
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:
Only people who are considered to be workers may apply for an order to stop bullying at work.
A place where a person performs work.
See bullying at work.
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:
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.
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.
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 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.
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.
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.
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.
The range of orders that the Commission may make (as contemplated by the Explanatory Memorandum) include orders requiring:
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.
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.
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.
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.
Matters dealt with in orders of the Commission have included:
The Commission cannot order reinstatement or the payment of compensation or a pecuniary amount.
An order for payment of a pecuniary amount may be one that requires a financial sum to be paid by one party to another. This can include fines and compensation.
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.
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.
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.
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:
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).
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.
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.
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.
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:
 Fair Work Act s.789FF(1).
 New South Wales v Commonwealth (Work Choices Case)  HCA 52 (14 November 2006), (2006) 229 CLR 1].
 ibid., at para. 178.
 Revised Explanatory Memorandum, Fair Work Amendment Bill 2013 at para. 120.
 Revised Explanatory Memorandum, Fair Work Amendment Bill 2013 at para. 121.
 Revised Explanatory Memorandum, Fair Work Amendment Bill 2013 at para. 119.
 South Eastern Sydney Local Health District v Lal  FWCFB 1475 (Hatcher VP, Sams DP, Hampton C, 7 March 2019) at para. 24.
 Churches and Others v Jackson and Woods  FWCFB 2367 (O’Callaghan SDP, Clancy DP, Hampton C, 14 April 2016) at para 32.
 For examples see Applicant v Company A Pty Ltd; Company B Pty Ltd; and Third Respondent PR555521 (Williams C, 15 September 2014); CF and NW PR569997 (Hampton C, 30 July 2015); Roberts v VIEW Launceston Pty Ltd as trustee for the VIEW Launceston Unit Trust T/A View Launceston and Others PR573139 (Wells DP, 23 October 2015); Bowker and Others v DP World Melbourne Limited T/A DP World and Others PR574247 (Gostencnik DP, 26 November 2015).
 Fair Work Act s.789FF(1).
 South Eastern Sydney Local Health District v Lal  FWCFB 1475 (Hatcher VP, Sams DP, Hampton C, 7 March 2019) at para. 27.
 Fair Work Act s.789FF(2).
 Revised Explanatory Memorandum, Fair Work Amendment Bill 2013 at para. 123.
 Fair Work Act s.789FH.
 Fair Work Act s.789FF(2)(a).
 Revised Explanatory Memorandum, Fair Work Amendment Bill 2013 at para. 88.