Are You Aware that some Employees can Apply for an Order to Stop Workplace Bullying?

Not all employees can apply for an Order, eligible employees must satisfy two requirements:

They must be a worker, i.e. a worker for the purposes of the Work Health and Safety Act 2011:

1. employee;
2. contractor or subcontractor;
3. employee of a contractor or subcontractor;
4. employee of a labor hire company;
5. outworker;
6. apprentice or trainee;
7. student gaining work experience;
8. volunteer; and

They must be working for a constitutionally covered business, which includes a business or undertaking (within the meaning of the Work Health and Safety Act) conducted by a:

1. constitutional corporation (e.g. proprietary limited corporation, incorporated association conducting trading or financial operations);
2. Commonwealth or a Commonwealth Authority;
3. Body corporate incorporated in a Territory;
4. Principally in a Territory or Commonwealth place.

Workers, who may be ineligible to apply, include:

1. workers in businesses or undertakings conducted by:
   • Sole traders or partnerships;
   • State government departments and some state government agencies;
   • Local government organisations;
   • Corporations whose main activity is not trading or financial;
2. members of the Defence Force;
3. otherwise eligible workers – if the bullying occurs outside of work.

The Fair Work Commission can make an order to stop bullying at work from occurring if it is satisfied that:

1. an eligible worker has been bullied at work by an individual or a group of individuals; and
2. there is a risk that the worker will continue to be bullied at work by that same individual or group.

The Fair Work Commission cannot award fines, penalties or compensation – just orders to stop bullying from occurring. Orders could include:

1. requiring an individual or group to stop specified behaviour;
2. regular monitoring of behaviours by an employer or principal;
3. compliance with an employer or principal’s bullying policy;
4. the provision of information and additional support and training to workers;
5. review the employer’s or principal’s bullying policy.

Before making an order, the Fair Work Commission must take into account:

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

If an order is made by the Fair Work Commission to stop bullying at work from occurring, the parties bound by the order must comply with it. If they don’t the Fair Work Commission can impose fines or penalties.

Process overview for an order to stop bullying:

1. application – Worker applies to the Fair Work Commission – Form F72 (www.fwc.gov.au) and either pay the applicable fee or apply for an exemption if serious financial hardship;
2. service of application – FWC informs those people who might be affected by the Application, by providing them with a copy of the application and ask for a response;
3. confirming application details – FWC will ring the applicant to confirm the application details and decide how best to deal with the matter (e.g. mediation, conference, hearing);
4. employer’s response – employer/principal must send its response, including any objections, to FWC (and the other parties) within 7 days – Form F73;
5. alleged bully’s response – alleged bully, who wants to respond, must complete Form F74 and send it to the FWC (and the other parties) within 7 days;
6. If:
   • mediation – informal attempt to get parties to reach an agreement;
   • conference – private – Notice of Listing and possibly Directions;
   • hearing – public – Notice of Listing and possibly Directions.

For more information on Workplace Bullying please click here or contact Matt Bell from the Business and Workplace Law team at Murdoch Lawyers.