Powers of the Commission

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 or sexual harassment (or both). This may include contacting the employer or other parties to the application, conducting a conference or holding a formal hearing.[125]

The President may refer a matter to a work health and safety (WHS) regulator where it considers this is necessary and appropriate.[126] 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 WHS law as well as an application to stop bullying or sexual harassment (or both) before the Commission.[127]

The Commission is required to consider the evidence and objectively assess whether it is satisfied that bullying and/or sexually harassment has occurred at work in relation to the worker.[128]

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.[129]

The Commission does not have an investigatory role in relation to allegations of bullying and/or sexual harassment at work and it is not necessary for the Commission to undertake a complete investigation of the background to the concerns raised. 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 and/or sexually harassed at work and whether there is a risk that the bullying and/or sexual harassment will continue.

In order to be satisfied that a worker has been bullied and/or sexually harassed at work, the Commission first needs to make factual findings about what had occurred and assess whether the behaviour of relevant persons may be characterised as falling within the definition of 'bullied at work' or ‘sexually harassed at work’ – this requires the Commission to reach a conclusion as to the relevant elements of the conduct complained of.[130]

Before making a decision, a Member is likely to hold a preliminary conference to see if the matter can be resolved. 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 or sexual harassment or both.

See Fair Work Act ss.592–593

Conferences

A conference conducted by the Commission must be held in private unless the Commission specifically directs otherwise.[131]

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.[132] Parties can bring a support person with them to a conference, such as a partner, parent or close friend. While support persons are not representatives, they can provide emotional support and act as a 'sounding board' during private sessions.

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.[133]

Where a matter is not resolved, the Commission may determine the matter by holding a hearing or a determinative conference. Determinative conferences are less formal than hearings and are held in private.

While determinative conferences are held in private, the Commission will still publish its reasons for decision, including the names of the parties, details of the allegations made against individuals and relevant witness evidence, on the Commission’s website (unless the Commission decides otherwise). Even though a determinative conference is held in private, it is recorded and transcript may be available on request to the parties.

Hearings

A hearing is a proceeding which is generally conducted in public, resulting in a decision.[134] Hearings are more formal than conferences.

The Commission may inform itself in relation to a matter before it as it sees fit. The Commission will only conduct a hearing if it considers it appropriate to do so.[135]