Fair Work Commission

The Commission's anti-bullying jurisdiction, which commenced on 1 January 2014, enables a worker who believes he or she has been bullied at work to apply for an order to stop the bullying.

Under the Fair Work Act, a worker is bullied if:

An individual or a group of individuals repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member, and that behaviour creates a risk to health and safety.

To be able to apply for an order, a worker must work in a constitutionally-covered business.

The Commission is empowered to make any order it considers appropriate to prevent a worker from being bullied, other than an order requiring payment of money or financial penalty.

The Commission deals with anti-bullying applications differently from other types of applications, recognising the sensitivity and personal nature of the matters at hand, the ongoing working relationships and the potential for one or more of the parties to a matter to be experiencing mental health issues.

Figure 9: Anti-bullying — flowchart of the process

This flowchart outlines the process followed by the Commission in dealing with anti-bullying matters.

Performance

In 2015–16 the Commission:

• received 71,736 website hits regarding anti-bullying
• received 50,225 visits to the online eligibility quiz for anti-bullying applications
• dealt with more than 6,300 telephone inquiries
• received 11,806 website visits to the anti-bullying benchbook
• received on average 61 applications per month
• processed 734 applications

The number of anti-bullying applications and outcomes has been consistent since the jurisdiction commenced on 1 January 2014. In 2015–16, the Commission received 734 applications for orders to stop bullying. This compares with 694 in 2014–15 and 343 in the first six months of 2014. Three hundred and fifty two applications were withdrawn prior to proceedings, 191 were resolved during the course of proceedings and a further 108 were withdrawn after a conference or hearing and before a decision. Like the two previous reporting periods, less than eight per cent of applications (52) were finalised with a decision and seven applications were granted, compared with one in each of the two previous reporting periods.

Delivery

In 2015 the Commission conducted a review of the first 12 months of the operation of the anti-bullying case management process and identified a number of areas for further development and improvement. Throughout 2015–16 the Commission has commenced or completed work on each of those areas that were identified, including: improving the collection of data in relation to results and demographic information; undertaking some preliminary research into the relationship between anti-bullying applications and other applications to the Commission; improving the information available about the practical operation of the jurisdiction, by reviewing and updating information materials and developing a Virtual Tour; updating forms, and; considering how the Commission can further improve the support for parties suffering from mental health issues, including training options for both Members and staff.

Work in relation to these and other areas is ongoing as a key feature of the Commission's anti-bullying process is to monitor and improve the operation of the jurisdiction based upon experience.

Steps to dealing with matters

Under the Fair Work Act, the Commission has to start dealing with an anti-bullying application within 14 days of it being made. This year the Commission met the requirement for 100 per cent of applications, with the process usually beginning within the first 24 hours (see Table 26).

1 100th percentile is the longest time (days) taken to deal with a matter.

Anti-bullying applications are assessed on lodgment by the Case Management Team, taking into consideration issues such as whether they fall within the Commission's jurisdiction and the nature of the alleged bullying, with the Panel Head then deciding how to progress them. The Commission also contacts the parties and sends a copy of the application to the employer and the person/s named in the application as having allegedly engaged in bullying behaviour. This provides an opportunity for them to respond.

Early withdrawal of applications

This year 32.3 per cent of applications were withdrawn while still with the Case Management team or the Panel Head. Another 15.7 per cent were withdrawn before any proceedings commenced. Factors that can lead to early withdrawal include identifying jurisdictional barriers to the application, the preventative focus of the potential orders and decisions to follow alternative ways to resolve the issues arising at the workplace.

Matters can also be resolved during these early stages. The response of the employer or the person/s named in the application as having allegedly engaged in bullying behaviour can be enough to satisfy the applicant. In this way, service of the application by the Commission can itself result in prompt resolution of the issues arising at the workplace.

1 The anti-bullying jurisdiction commenced on 1 January 2014, therefore this data relates to the date range 1 January 2014 to 30 June 2014.

2 Applications withdrawn prior to substantive proceedings — while the matter is with the Case Management team or Panel Head.

3 Includes matters that are withdrawn prior to a proceeding bei ng listed; before a listed conference, hearing, mention or mediation before a Commission Member is conducted; and before a listed mediation by a staff member is conducted. This also includes matters where an applicant considers the response provided by the other parties to satisfactorily deal with the application.

4 Includes matters that are resolved as a result of a listed conference, hearing, mention or mediation before a Commission Member or listed mediation by a staff member.

Mediation

When appropriate the Panel Head will refer an anti-bullying application for mediation by a staff conciliator. This year 37 such mediations were conducted, mostly by telephone.

Matters dealt with by Members

The great majority of matters that are not either resolved or withdrawn early in the process are dealt with by Members, either by conference or hearing. In most cases, Members will start with a preliminary conference to gain an understanding of the issues and stabilise relationships, and if necessary make directions for a hearing.

Of the matters resolved by Members, common outcomes included:

• undertakings about future behaviour
• clarification of roles, responsibilities and reporting relationships
• commitment by the employer to establish or review anti-bullying policies
• provision of information, additional support and training to workers
• the worker returning to work on agreed conditions
• agreed relocation of named individual and/or the applicant worker

Orders

Members must formally determine applications that are not withdrawn or resolved. If a finding of bullying behaviour is made and the Commission is satisfied that the behaviours will continue, a Member may make any order it considers appropriate to prevent the applicant from being bullied at work, other than an order requiring payment of a pecuniary amount. This year saw an increase in the number of matters where such findings, and subsequent orders, were made. The nature of these orders are necessarily specific to each particular matter but requirements have included:

• obliging certain behaviour to stop
• controlling communication at the workplace
• establishing new reporting arrangements
• establishing and monitoring proper standards of conduct
• establishing proper complaints procedures
• provision of relevant workplace bullying training and professional development
• creation of return to work plans
• reviewing internal anti-workplace bullying resources