The following is a brief overview of the anti-bullying processes at the Fair Work Commission that will be applied in most cases.
Where possible, workers should try to address issues of bullying at work within the workplace. There may be processes already in place in the workplace to deal with issues of bullying, such as a bullying policy or a grievance procedure.
Workers are encouraged to raise the issues with their:
Workers can also speak to their union for information and advice on how to raise and deal with issues in the workplace.
State and territory work health and safety (WHS) regulators may be able to provide information on how to raise issues of bullying at work. Contact details for state and territory WHS regulators can be found at Safework Australia.
Applications should be lodged using Form F72 – Application for an order to stop workplace bullying.
The application must be accompanied by the appropriate fee. You may be able to apply for a waiver of that application fee in certain circumstances. Details about the appropriate fee, and how to apply for a waiver, can be found on the Forms & fees page.
Completed forms can be lodged:
The following video was created to assist those intending to make an application for an order to stop bullying. It explores how to complete the relevant form and how the form helps potential applicants consider their eligibility.
Once a worker's application for an order to stop workplace bullying has been lodged with the Commission, we will send a copy of the application to:
The Commission will also send out general information about what will happen next, and a response form to be completed (for more details, see Responding to an application, below).
The Commission will then decide how to deal with the matter (generally either by mediation, a conference or a hearing) and will then send all of the parties a written notice with the date and time for them to appear before the Commission (this is called a Notice of Listing).
This video explains what happens once an application for an order to stop bullying is made, from the Commission's initial contact with the applicant from the case management team, through service of the application on all parties, the receipt of responses and how the Commission may deal with the matter.
Employers and principals are encouraged to respond quickly and appropriately to the issues being raised. They have a duty to reduce or eliminate risks to workers' health and safety under WHS laws.
An employer or principal is:
Employer associations, chambers of commerce and peak industry bodies may be able to provide information for employers/principals on how to resolve issues of bullying at work.
The Department of Business (or equivalent) in most states and territories often has information to assist small businesses manage their staff, resolve disputes and develop human resources policies (including policies that deal with bullying). Contact details for the relevant department in your state or territory can be found on the Commission’s Enquiries page under Small business assistance.
The Commission will send a copy of Form F73 – Response from an employer/principal to an application for an order to stop bullying, to the employer or business that employed or engaged the worker. A copy of the worker's application form will also be sent, so that the employer or business can respond to their specific claims.
The response form must be completed and returned to the Commission within 7 days. A copy must also be sent to those who are indicated in correspondence from the Commission. This may include:
The Commission will send a copy of Form F74 – Response from an employer/principal to an application for an order to stop bullying, to the person or people who the worker has named in their application. A copy of the worker's application form will also be sent, so the person who the worker alleges is bullying them can respond to their specific claims.
The response form must be completed and returned to the Commission within 7 days. A copy must also be sent to anyone who has a proper interest in the matter. This includes:
If you are responding to a worker's application for a workplace bullying order you can dispute the application on a number of different grounds.
You should record any objections you have to the application on your response form.
If you are objecting to an application, you will still need to complete all sections of the response form. The Commission will need all relevant information before it can determine whether to uphold your objection.
The following video is designed to assist you understand how to respond to an application for an order to stop bullying. It sets out timeframes, explores the relevant forms and discusses some of the objections that may be raised.
Once all the necessary information has been received, the Commission will then decide how best to deal with the matter.
If mediation is considered appropriate, the parties will be invited to attend mediation to help the parties to resolve the issues themselves. Mediation is an informal, confidential, voluntary process. The Commission will not be promoting monetary settlements of these applications.
If the mediation resolves the matter a written agreement may be drawn up to reflect what has been agreed between the parties, and the matter will not be determined by the Commission.
If the mediation does not resolve the matter the applicant worker may ask that the matter proceed to a conference or hearing.
Where the above applies, the Commission may then consider making an order. Alternatively, if there is no basis upon which to consider an order, the Commission may dismiss the application.
The Commission has an obligation to publish the reasons for its decisions in anti-bullying matters. Where appropriate, the Commission may choose to issue a decision without naming the parties to an application.
The Commission may consider that a conference is the best way to initially deal with the application. A conference is more informal than a hearing and is conducted in private.
The Commission Member may make a decision about the application at a conference, or may require further information before determining whether an order to stop workplace bullying should be made. This could include making arrangements for a hearing to be conducted.
The Commission may consider that a hearing is the best way to deal with the application. A hearing is a formal proceeding.
Normally, formal evidence is received, and the Member will decide the application on the facts of the case.
If you can't attend on the date of the mediation, conference or hearing, or if there is any other reason why you think the matter should be delayed, you can apply for an adjournment.
An application for an adjournment must be made in writing, and you must provide full reasons why the adjournment should be granted. Adjournments will only be granted where there are substantial grounds.
Any request for an adjournment should be made as soon as you become aware that the date is unsuitable.
If a party does not attend a hearing, orders may be made in their absence.
The following video looks at what parties can expect when an application for an order to stop bullying is dealt with by the Commission. The video explains the types of proceedings the Commission may use and a range of possible outcomes including a comprehensive review of orders to stop bullying.
An order is a ruling made by a Commission Member after they have heard and determined a matter. Once an order has been made, anyone bound by that order must comply with it. Courts can impose substantial penalties on parties who fail to comply with orders.
In bullying matters, a Commission Member can make any order the Member considers appropriate to prevent the worker being bullied further.
The focus of any orders the Commission may make must be to prevent further bullying. Actions that the Commission might consider ordering could include:
However each case will be considered on its merits, and parties should consider the specific circumstances of the workplace when seeking orders or responding to proposals for orders.
The Commission cannot issue fines or penalties and cannot award financial compensation.
Before making an order, the Commission must take into account:
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.