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Anti-bullying
Table of contents
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 bullying
See bullying at work.
Introduction
A worker in a constitutionally covered business who reasonably believes that he or she has been bullied at work can apply to the Fair Work Commission for an order to stop the bullying.
This section of our website contains information about:
- what bullying at work is
- who can apply for an order to stop bullying at work, and
- the process to follow.
Video: The Fair Work Commission's role in stopping bullying
The following video provides a general overview of the Fair Work Commission’s anti-bullying jurisdiction including key definitions, how the Commission may deal with an application and what an order to stop bullying is.
Workplace Advice Service – VIC, NSW & QLD
The Commission has launched a Workplace Advice Service (Service), to provide access to free legal assistance to eligible persons, including small business employers seeking employment law advice. This service is currently available in Victoria, NSW & Queensland.
Find out more by visiting our Where to get legal advice page.
What is bullying at work?
Bullying at work occurs when:
- a person or a group of people repeatedly behaves unreasonably towards a worker or a group of workers 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.
Find out more
- Read the meaning of workplace bullying at s.789FD of the Fair Work Act 2009
- Learn more about what constitutes repeated unreasonable behaviour, risk to health and safety and reasonable management action in the Commission's Anti-bullying benchbook
NOTE: The Commission can only deal with applications for an order to stop bullying if a worker is bullied while they are at work in a constitutionally covered business.
Bullying behaviour may involve, for example, any of the following types of behaviour:
- aggressive or intimidating conduct
- belittling or humiliating comments
- spreading malicious rumours
- teasing, practical jokes or 'initiation ceremonies'
- exclusion from work-related events
- unreasonable work expectations, including too much or too little work, or work below or beyond a worker's skill level
- displaying offensive material
- pressure to behave in an inappropriate manner.
However, in order for it to be bullying the behaviour must be repeated and unreasonable and must create a risk to health and safety.
Find out more
Download our Guide – Anti-bullying (PDF)
What is reasonable management action?
Reasonable management action carried out in a reasonable manner does not constitute 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
- maintaining reasonable workplace goals and standards.
However, these actions must be conducted in a reasonable manner. If they are not, they could still be bullying.
Video: What is workplace bullying?
The following video provides a comprehensive exploration of the definition of bullying within the Fair Work Act, including reasonable management action and the importance of identifying ongoing risk. The video also looks at who is eligible to make an application and the other parties that may be involved.
What it means to me
If you have received a copy of an application for an order to stop bullying in the workplace, it means:
- Someone believes they have experienced bullying behaviour at work.
- They have applied to the Fair Work Commission for an order to stop the bullying.
- No decision has been made.
- You should carefully read the information that was sent to you with the application.
- So that the Commission understands your point of view, you or your company need to respond to the application, using the correct form, within 7 days.
- The person who is alleged to have engaged in bullying behaviour will also get a copy of the application and has the opportunity to respond to the application if they want to, using the correct form, within 7 days.
- As each case is different, the Commission will decide the best way to deal with the application and will let you know when, where and how that will happen.
- The Commission may try to help the parties resolve the problem together without 'going to court'. If the matter cannot be resolved, or this is not considered appropriate, a formal hearing may be necessary.
If you believe you have been bullied at work:
- You can apply to the Fair Work Commission to help stop the bullying by completing the correct form and sending it in.
- A copy of your application will be sent to your employer and to the person you allege has bullied you at work, and they will be given the chance to respond to your application.
- As each case is different, the Commission will decide the best way to deal with the application and will let you know when, where and how that will happen.
- You should carefully read the information that the Commission will send to you after we receive your application.
- The Commission may try to help the parties resolve the problem together without 'going to court'. If the matter cannot be resolved, or this is not considered appropriate, a formal hearing may be necessary.
- If it goes to a hearing the Commission can make any order the Commission Member considers appropriate to prevent the worker being bullied further. This can include:
- an order requiring the people involved to stop the bullying
- an order to comply with, or review, the employer's bullying policy
- an order requiring workers be provided with further information, additional support and training.
- The Commission cannot make an order for a monetary amount, so cannot order compensation or fines to be paid.
Updated time
Last updated
03 December 2018
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