Commission processes

The Fair Work Commission must start to deal with an application for an order to stop bullying within 14 days after the application is made.[1]

The making of an application does not of itself stop any actions taking place at a workplace. This includes meetings in respect of performance, potential dismissal or investigations.

The Fair Work Act 2009 (the Fair Work Act) provides the Commission with flexibility to inform itself as it considers appropriate in relation to an application for an order to stop the bullying. This may include contacting the employer or other parties to the application, conducting a conference or holding a formal hearing.[2]

The President may refer a matter to a work health and safety (WHS) regulator where it considers this necessary and appropriate.[3] If such a referral is made, it does not necessarily mean that the Commission will defer dealing with an application before it. The Fair Work Act specifically provides that an applicant may have an action under a work health and safety law as well as an application before the Commission.[4]

The Commission is required to consider the evidence and whether, assessed objectively, that evidence constitutes bullying behaviour and, in that context, whether it comprised reasonable management action carried out in a reasonable manner.[5]

It is not necessary for the Commission to undertake a complete investigation of the background to the concerns raised and make findings about each of those occasions. The Commission is not required by the relevant provisions of the Fair Work Act to set out a point-by-point merits review of each aspect of the applicant’s claim.[6]

The Commission does not have an investigatory role in relation to allegations of bullying at work. It is for the parties to present their own case and for the Commission to determine whether it is satisfied that a worker has been bullied at work and that there is a risk that the bullying will continue before an order can be made.

Prior to this determination being made, a Member is likely to hold a preliminary conference to consider how the matter will proceed and how the parties will conduct themselves during the course of proceedings. A matter may then be listed for a determinative conference or a hearing to determine whether or not to make an order to stop bullying.

See Fair Work Act s.592 and s.593

Conferences

Any conference conducted by the Commission must be held in private unless the Commission specifically directs otherwise.[7]In private means that members of the public are excluded. Persons who are necessary for the Commission to perform its functions are permitted to be present.[8]In the course of dealing with a matter, the Commission may conduct mediation or conciliation, make a recommendation to the parties or express an opinion.[9]

A Commission member takes account of particular circumstances of the parties in conducting the arbitration by determinative conference. In a matter where both parties are self-represented the matter will be listed for determinative conference unless the member decides otherwise.

While determinative conferences are held in private, the Commission will still publish its reasons for decision, including the names of the parties, on the Commission’s website (unless the Commission decides otherwise).

Determinative conferences may involve more informal procedures than in a hearing.

Hearings

A hearing is a proceeding which is generally conducted in public, resulting in a decision. Hearings are more formal than conferences.

The Commission can only conduct a hearing if it considers it appropriate to do so.[10] In making this decision the Commission must take into account:

• the views of the parties, and
• whether a hearing is the most effective and efficient way to resolve the matter.[11]