What is the process?

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Overview of the process

The following is a brief overview of the anti-bullying processes at the Fair Work Commission that will be applied in most cases.

  1. Application is lodged – a worker lodges an application for an order to stop workplace bullying.
  2. Response from the employer or business – the Commission sends a copy of the application to the employer and the person/s alleged to be engaging in bullying behaviour, and they are given an opportunity to respond.
  3. Application is dealt with by the Commission – by mediation, conference or hearing, depending on the circumstances of each case.
  4. Application is resolved or determined – the matter may be resolved by agreement between the parties, or the Commission may issue a decision and/or an order to stop the workplace bullying.

Before you apply

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:

  • supervisor and/or manager
  • health and safety representative
  • human resources department.

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.

Lodging an application

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:

Video: How to make an anti-bullying application

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.

After an application is lodged

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 person or business that employs or engages the worker
  • the person or people who the worker alleges is bullying them
  • the person or business that employed or engaged this person or people (if different), and
  • any representatives.

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).

Video: What happens when an application is made

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.

Responding to an application

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:

  • the person or business that employs or engages the worker who is alleging they are being bullied at work, and/or
  • the person or business that employs or engages the person accused of bullying behaviour

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.

Response from the employer or business that employed or engaged the worker

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 worker who has made the application
  • the person or people who the worker alleges is bullying them
  • the person or business who employs or engages the person the worker alleges is bullying them (if different), and
  • any representatives.

Response from a person or people who the worker alleges is bullying them

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:

  • the worker
  • the person or business who employs or engages the worker
  • the person or business who employs or engages the person the worker alleges is bullying them (if different), and
  • any representatives.

Disputing an application

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.

These include:

  • the alleged behaviour has not occurred repeatedly
  • the worker is not covered by the national workplace bullying laws
  • the action taken was reasonable management action carried out in a reasonable manner, and/or
  • the application is frivolous, vexatious or has no reasonable prospect of success.

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.

Video: How to respond to an anti-bullying application

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.

Dealing with the application

Once all the necessary information has been received, the Commission will then decide how best to deal with the matter.

Mediation

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.

Determination by the Commission

If the matter proceeds to a conference or hearing, the Commission may determine the application and will need to consider the following:

  • whether the application fits within the coverage of the anti-bullying jurisdiction
  • whether bullying has occurred, and
  • whether there is a risk of further bullying conduct at the workplace of the applicant worker.

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.

Conference

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.

Hearing

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.

Adjournments

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.

Video: How bullying matters are resolved

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.

Orders & remedies

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:

  • requiring the individual or group of individuals to stop the specified behaviour
  • regular monitoring of behaviours by an employer or principal
  • compliance with an employer's or principal's bullying policy
  • the provision of information, additional support and training to workers
  • review of the employer's or principal's bullying policy.

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:

  • any outcomes arising out of an investigation into the alleged bullying conducted by another person or body
  • any procedures available to the worker to resolve the alleged bullying and any outcomes arising from those procedures.

Find out more

 

 

Updated time

Last updated

24 September 2019

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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.

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

A place where a person performs work.

workplace bullying

See bullying at work.