Anti-bullying

721

Applications lodged

700

Applications finalised

The anti-bullying jurisdiction allows a worker who believes that he or she (or a group that he or she belongs to) has experienced repeated unreasonable behaviours at work to apply for an order to stop those behaviours. Reasonable management action carried out in a reasonable manner is excluded from the definition of bullying.

In order to apply, the behaviour must take place while the worker is at work in a ‘constitutionally-covered business’, as defined in s.789FD of the Fair Work Act.

To make an order to stop bullying, the Commission must be satisfied that the behaviours have created a risk to the applicant worker’s health and safety, and that there is a risk that the behaviours will continue.

The Commission focuses on resolving the matter and enabling mutually safe and productive working relationships to resume. The majority of matters are resolved without the need to make an order. Matters can be resolved in various ways, including through the employer’s recognition of, and response to, a workplace complaint and the agreed implementation of workplace solutions such as providing training, or adjusting lines of reporting.

The case management process adopted by the Commission is designed to facilitate the informed, safe and constructive engagement of all parties. The Commission seeks to initially progress appropriate matters through early preliminary conferences to establish an appropriate basis for the parties’ conduct while the substantive application is being considered.

If a finding is made, a Member may make any order he or she considers appropriate to prevent the behaviours continuing; however, the Commission cannot order reinstatement, compensation or a monetary amount.

Performance overview

In 2017–18:

  • 721 applications for an order to stop bullying were lodged
  • 700 applications were finalised, of which 8 per cent (53) were resolved by the Commission issuing a decision or order.

The website received 172,005 hits regarding anti-bullying, 45,130 page views or downloads of the anti-bullying benchbook, 19,007 views of the anti-bullying virtual tour, and 13,047 page views of the online eligibility quiz for anti-bullying applications. Staff answered 6,098 telephone enquiries concerning anti-bullying.

Performance discussion

The numbers of anti-bullying applications and outcomes have been fairly consistent since the jurisdiction commenced on 1 January 2014, as shown in Table 12.

Table 12: Anti-bullying—applications lodged and finalised
  No. lodged No. finalised
Matter type 2017–18 2016–17 2015–16 2014–15 2017–18 2016–17 2015–16 2014–15
FWA s.789FC—Anti-bullying 721 722 734 694 700 695 705 676

FWA = Fair Work Act

Note: The number of applications finalised does not equal the number of applications lodged in the financial year because some applications are finalised outside the year in which they are lodged.

A total of 700 applications for an order to stop bullying were finalised in 2017–18. Table 13 sets out how the anti-bullying matters were finalised during the year. Consistent with results in previous years, a large majority (92 per cent) of applications were finalised without a decision or order. This is a product of the relatively high rates of settlement and withdrawal of applications, including where appropriate arrangements are made in the workplace without a formal agreed resolution.

Table 13: Anti-bullying—finalisation of matters
Outcome 2017–18 2016–17 2015–16 2014–15
Applications withdrawn early in case management process1 183 171 237 185
Applications withdrawn before proceedings2 97 125 115 122
Applications resolved during the course of proceedings3 234 188 191 191
Matters withdrawn after a conference or hearing and before decision 133 151 110 118
Applications finalised by decision 53 60 52 60
Total 700 695 705 676

1 Applications withdrawn before substantive proceedings—while the matter is with the case management team or panel head.

2 Includes matters that are withdrawn before a proceeding being 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.

3 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.

Table D12 in Appendix D provides a breakdown of how the Commission resolved the 53 applications that were finalised by decision in 2017–18. An order to stop bullying was made in eight substantive applications, which represents 1 per cent of the finalised cases, consistent with results in previous years.

Timeliness

The Fair Work Act requires the Commission to start dealing with an application for an order to stop bullying within 14 days of lodgment. Similar to the approach to general protections applications not involving dismissal, this legislative timeframe recognises that relationships at work are ongoing while the Commission is dealing with the application.

In 2017–18, the Commission maintained its high level of performance, with a median of one day taken to begin dealing with an application, as shown in Table 14. As in previous years, the Commission started to deal with all applications well within the 14-day limit—the longest time taken in 2017–18 was five days. This reflects the high levels of support and resourcing that the Commission allocates to this jurisdiction.

Table 14: Anti‑bullying—timeliness
  Days elapsed
  In 50% of matters In 100% of matters
Process 2017–18 2016–17 2015–16 2014–15 2017–18 2016–17 2015–16 2014–15
FWA s.789FC—Anti‑bullying—time to start dealing with an application 1 1 1 1 5 6 5 9

FWA = Fair Work Act

Significant decision—orders for a mutually safe and productive workplace

To make an order to stop bullying, the Commission must be satisfied that the behaviours have created a risk to the applicant worker’s health and safety and that there is a risk that the behaviours will continue. If a finding is made, a Member may make any order he or she considers appropriate to prevent the behaviours continuing.

In this matter the Commission considered six allegations of unreasonable behaviour and found that four met the definition of bullying. The Commission decided that there was a likelihood that the unreasonable behaviour would continue and there was some risk that it could create a risk to health and safety; however, it was also found that the applicant was partly responsible for the ongoing nature of the behaviour.

Given these findings, the Commission issued orders to prevent future behaviours, which included the provision of anti-bullying and positive communication training to all individuals involved in the application, including the applicant. You can read the decision in Burbeck v Alice Springs Town Council; Georgina Davison; Skye Price; Clare Fisher at [2017] FWC 4988.