Skip to main content

Ribbon

  • About us
  • Contact us
  • Glossary
  • News & media
Fair Work Commission logo

Fair Work Commission

Australia's national workplace relations tribunal
Search is closed
Menu is closed

Search

Main menu

  • Awards & agreements
    • Minimum wages & conditions
    • Awards
    • Agreements
    • Legislation & regulations for awards & agreements
  • Cases, decisions & orders
    • Major cases
    • Summaries of significant decisions
    • Decisions by keywords
    • FWC Bulletin
    • Archived decisions & orders
    • Transcripts
    • Court reviews
    • Historical cases
  • Registered organisations
    • Fact sheets, templates & webinars
    • Find registered organisations
    • Find State-recognised associations
    • Registration
    • Running a registered organisation
    • Entry permits
    • Industrial action
    • Gazette notices
    • Lodgment
  • Resources
    • Online lodgment
    • Forms
    • Where to get legal help
    • Research
    • Workplace Relations Education Series
    • Benchbooks
    • Fact sheets, guides & videos
    • Practice notes
    • Resources in other languages
    • Case studies
    • Quarterly practitioner updates
    • Related sites
  • Termination of employment
    • Unfair dismissal
    • General protections dismissal
    • Unlawful termination
    • How the Commission works
  • Disputes at work
    • Fairness in the workplace
    • Resolving issues at the Commission
    • Cooperative Workplaces program
    • JobKeeper disputes
    • General protections (unlawful actions)
    • Anti-bullying
    • Industrial action
    • Awards & enterprise agreements disputes
    • Disputes about entry
    • How the Commission works
  • Home
  • Anti-bullying benchbook
Back to top

Anti-bullying benchbook

An overview of legal procedure & case law

When is a worker bullied at work?

Print this page

 

Table of contents

On this page

  • Introduction
  • Repeated unreasonable behaviour
  • Risk to health and safety
  • Bullying – case examples
  • Case examples of bullying behaviour
  • Case examples of NOT bullying behaviour
  • References

 

Introduction

See Fair Work Act s.789FD

A worker is bullied at work if, while the worker is at work in a constitutionally-covered business, another individual, or group of individuals, repeatedly behaves unreasonably towards the worker, and that behaviour creates a risk to health and safety.

Bullying can cover behaviours carried out by one or more people.

Repeated unreasonable behaviour

The concept of repeatedly behaving unreasonably refers to the existence of persistent unreasonable behaviour, and may include a range of behaviours over time. There is no specific number of incidents required for the behaviour to be ‘repeated’, provided there is more than one occurrence, nor does the same specific behaviour have to be repeated.[1]

Unreasonable behaviour is behaviour that a reasonable person, having regard to the circumstances, may see as unreasonable. In other words it is an objective test.[2] This would include (but is not limited to) behaviour that is victimising, humiliating, intimidating or threatening.[3]

Risk to health and safety

A risk to health and safety means the possibility of danger to health and safety, and is not confined to actual danger to health and safety.[4] The ordinary meaning of ‘risk’ is exposure to the chance of injury or loss.[5] The risk must be real and not simply conceptual.[6]

The bullying behaviour must create the risk to health and safety. Therefore there must be a causal link between the behaviour and the risk. Cases on causation in other contexts suggest that the behaviour does not have to be the only cause of the risk, provided that it was a substantial cause of the risk viewed in a common sense and practical way.[7]

Reasonable management action carried out in a reasonable manner is NOT bullying.

Related information

  • What is workplace bullying?
  • Examples of bullying
  • What does ‘Reasonable management action carried out in a reasonable manner’ mean?

Bullying – case examples

Note: in addition to decisions concerning what may constitute bullying at work under Part 6-4B of the Fair Work Act 2009 (the Fair Work Act), the following examples include cases about bullying in other legal contexts.

Many of the following cases are extreme examples of workplace bullying. Bullying can take many forms. It can involve less overt, less severe and more subtle behaviours. More subtle behaviours such as exclusion can, if frequently repeated over an extended period of time, amount to a significant psychological hazard for a worker.

Work health and safety regulators assess and investigate bullying complaints in accordance with their individual compliance and prosecution policies, which may take into account issues such as the immediate risk to health and safety, possible breaches of work health and safety legislation, evidence, likelihood of success and whether prosecution would be in the public interest. Furthermore, jurisdictions that utilise alternative dispute resolution practices may not keep or publish records of the outcomes in these matters.

For the Fair Work Commission to make an order to stop bullying, an applicant will need to show that on the balance of probabilities, a worker, whilst at work, has been bullied, that the behaviour creates a risk to health and safety, and that there is a risk that the worker will continue to be bullied at work.

Case examples of bullying behaviour

Repeated unreasonable behaviour

Lacey and Kandelaars v Murrays and Cullen

[2017] FWC 3136 (Roe C, 8 June 2017).

Facts

The two applicants were bus drivers and each made an application for an order to stop bullying by their Manager. They alleged that the behaviour engaged in by their manager was unreasonable, including:

  • finding fault with work where there was none
  • raising his voice and being intimidating and turning red
  • hiding in buses in order to frighten the second applicant
  • directing the second applicant to inaccurately fill out his logbook in contravention of fatigue laws, and
  • acting in a confrontational manner with the first applicant.

In total 12 bus drivers, including the applicants, gave evidence complaining about the Manager’s behaviour.

Outcome

The Commissioner found that the Manager had engaged in repeated, unreasonable behaviour and that behaviour created a risk to health and safety. The Manager had bullied the applicants. However, the Commissioner declined to issue an order to stop bullying. He considered that, as the employer had changed the reporting lines so that the applicants would not be directly managed by the Manager, they would not be at risk of bullying continuing. Further, he also considered that the finding of bullying itself would ‘be sufficient to protect Mr Lacey and Mr Kandelaars from the risk of further bullying’.

Relevance

In this matter the Commission was presented with evidence from both of the applicants, and also from other bus drivers working at the company. The evidence of the other drivers established a number of other incidents where the Manager swore at drivers or humiliated drivers or unnecessarily harassed drivers. This helped to show that the unreasonable behaviour was repeated, and that there was a risk that the drivers would continue to be bullied at work.

Bullying behaviour

Bowker and Others v DP World Melbourne Limited T/A DP World and Others

[2015] FWC 7312 (Gostencnik DP, 16 November 2015).

Facts

Three employees (the applicants) of DP World Melbourne Limited (DP World) employed at its West Swanson terminal each made an application for an order to stop bullying. The applications included allegations of conduct engaged in by individuals who are, or were, employees of DP World, members of The Maritime Union of Australia (the MUA) and/or officials of the MUA.

The unreasonable behaviour began after a complaint was made by one of the applicants to DP World concerning derogatory comments made about her by another employee of DP World. Between mid-2013 and July 2015, the applicants raised with DP World in excess of 212 complaints and concerns about conduct by other employees of DP World and representatives of the MUA, which they believed constituted bullying at work. The applicants alleged in the order of 37 instances of bullying in their application to the Commission. These included:

  • Facebook posts making various unreasonable and insulting allegations and comparisons of two of the applicants
  • a code of silence and bullying workplace culture
  • ostracism from the employee and union group
  • a lack of support from MUA officials, and
  • employees of DP World and MUA members had made various threats to one of the applicants and encouraged other members not to associate with them.
Outcome

The Commission was satisfied that each applicant was subjected repeatedly to unreasonable behaviour engaged in by an individual or a group of individuals, and that behaviour created a risk to their health and safety, saying that ‘the conduct engaged in ... is something about which no respondent party to these proceedings should be proud’. The Commission found that a code of silence, said to be a ‘prevailing culture or paradigm where employees at the WS Terminal will not make complaints to DP World or verify complaints made, for fear of being labelled a ‘lagger’ or being ostracised in the workplace’ still existed, and while steps had been taken by DP World to address the code more could be done.

Relevance

The ongoing unreasonable behaviour in this case was varied and frequent, with the applicants raising in excess of 212 complaints and concerns. Further impacting the effect of the behaviour was the fact that DP World had, on numerous occasions, failed to comply with the requirement under its Workplace and Bullying Policy to promptly deal with complaints. This slow response along with the negative workplace culture with the ‘code of silence’ exacerbated the effect of the workplace bullying on the applicants. Not dealing with allegations of workplace bullying appropriately may give the impression that unreasonable behaviour is an accepted part of the workplace.

CF and NW

[2015] FWC 5272 (Hampton C, 5 August 2015).

Facts

Two applicants made applications for orders to stop bullying. The applicants were employees of a relatively small real estate business and remained employed at the time the applications were heard. The applications alleged bullying conduct by a Property Manager engaged by the employer and then subsequently employed by a related company. Both applications concerned alleged conduct in the same workplace and the same unreasonable behaviour. The alleged behaviour by the Property Manager included:

  • belittling conduct
  • swearing
  • yelling and use of otherwise inappropriate language
  • physical intimidation, and
  • threats of violence.

The applicants raised some concerns with employer, these were the subject of an informal investigation and an attempted workplace mediation. With the support of the employer, the Property Manager resigned her employment with the employer but took up an equivalent position with a related company. At hearing the employer conceded that a finding that bullying conduct had taken place in the workplace could be made.

Outcome

The Commission found that the conduct revealed a workplace culture where unprofessional and unreasonable conduct and interactions had taken place which created a risk to health and safety of a number of workers involved. The Commission further found that the applicants had been bullied at work and was satisfied that there was a risk that the applicants would continue to be bullied at work.

Relevance

The culture in this workplace led to a situation where the applicants were subject to unreasonable behaviour by the Property Manager. The employer has a responsibility to ensure a safe workplace which is free from workplace bullying, this includes the conduct of staff it employs.

Repeated unreasonable behaviour

Re Ms LP

[2015] FWC 6602 (Hampton C, 4 November 2015).

[2016] FWC 763 (Hampton C, 12 February 2016).

Facts

The applicant was employed as a Food and Beverage Attendant at a family owned restaurant. She sought orders to stop certain alleged conduct by the group of individuals including orders for the employer to conduct management courses to be completed by the Supervisors at the restaurant and for all staff to attend training in relation to bullying conduct. The applicant's complaints centred around incidents of aggressive and intimidating conduct as well as exclusion from staff meetings. The employer contended that the alleged conduct was not bullying but rather was reasonable management action carried out in a reasonable manner.

Outcome

The Commission was satisfied, on fine balance, that there was sufficient relevant unreasonable behaviour towards the applicant and/or the group of workers to which she belonged whilst at work to constitute bullying. However, much of that behaviour occurred in a particular context that had now changed, with two of the persons involved no longer working at the restaurant.

In a separate decision the Commissioner declined to issue orders to stop bullying as positive measures had been taken by the employer and the Commissioner did not consider that the making of orders ‘would be conducive to the constructive resumption of working relationships’.

Relevance

Even where a finding of bullying and some future risk is made, the Commission must consider whether it is appropriate to make an order.

NOT reasonable management action conducted in a reasonable manner

Burbeck v Alice Springs Town Council; Georgina Davison; Skye Price; Clare Fisher

[2017] FWC 4988 (Wilson C, 6 October 2017.

Facts

The applicant was subject to 6 separately identifiable instances of management action.

Outcome

The Commissioner considered each instance in turn, determining that some aspects of the action were unreasonable, including the failure of the employer to consider grievances lodged by the applicant. It was also found that a failure by the applicant’s manager to adequately check her leave balance resulted in her annual leave being unreasonably refused.

In considering whether to issue orders, the Commissioner considered that there was a likelihood that the unreasonable behaviour would continue and there was some risk that it could create a risk to health a safety. In part, the ongoing nature of the behaviour was partly attributed to the applicant, considering that ‘the presence of this contributory behaviour and conduct inevitably tempers consideration of what may be done about the conduct’.

Relevance

An applicant’s own conduct is a matter that the Commission may consider relevant under s.789FF(2)(d) when considering the terms of an order. Orders included the provision of anti-bullying and positive communication training to all individuals involved in the application, including the applicant.

Multiple manifestations

Nationwide News Pty Ltd v Naidu; ISS Security Pty Ltd v Naidu

[2007] NSWCA 377 (21 December 2007), [(2007) 71 NSWLR 471].

Facts

A male labour hire employee succeeded in obtaining damages in negligence against his employer and the company for which he performed work on the basis that he was subjected to bullying behaviour from an individual at the workplace over five years including:

  • physical and sexual assault
  • threats such as ‘I will do you’
  • grossly improper conduct, including racist and sexist vilification
  • requirements to work unreasonable hours for up to 18 months while being underpaid
  • being required to ask the bully for permission to go to the toilet, and
  • being unreasonably refused carers’ leave.
Outcome

The Court found that the conduct perpetrated on the worker was prolonged, abusive, intimidating and physically threatening. It was bullying in an extreme form. The perpetrator’s conduct was ‘so brutal, demeaning and unrelenting that it was reasonably foreseeable that, if continued for a significant period of time ... it would be likely to cause significant, recognisable psychiatric injury’.

Relevance

Although this is not a decision of the Commission, it has been included as an example of extreme bullying occurring in the workplace. The damages/compensation awarded in this case are not available in the Commission as the Fair Work Act does not allow the payment of compensation or damages.

Ostracism

Willett v State of Victoria

[2013] VSCA 76 (12 April 2013).

Facts

The bullying target, a police officer, alleged she was bullied after being moved into a new unit including by:

  • conversations concerning the manner in which the target got the job and about her pregnancy
  • the use of the ‘black widow’ epithet and other offensive conversations
  • requirements to carry out alternative duties while pregnant which the target did not agree to
  • exclusion from social club activities
  • disadvantageous work station and rostering arrangements and requirements to ‘act as messenger’, and
  • social ostracism.

The employer denied that many of the events detailed actually occurred.

Outcome

The jury found that the target did suffer injury as a result of the employer’s negligence. The target had suffered a serious mental disturbance caused by the respondent’s conduct. The decision was affirmed on appeal.

Relevance

Although this is not a decision of the Commission, it has been included as an example of bullying occurring in the workplace, including bullying by exclusion of the target from workplace activities. The damages/compensation awarded in this case are not available in the Commission as the Fair Work Act does not allow the payment of compensation or damages.

Bullying downwards

Swaran Lata Kumar and Macquarie Partnership Lawyers

[2005] NSWIRComm 202 (14 July 2005).

Facts

The bullying target made legitimate complaints about late pay, which culminated in her being dismissed from her employment as a legal secretary after six months. She sought relief under the victimisation provisions of the Industrial Relations Act 1996 (NSW), alleging bullying that involved:

  • changing working hours with one working day’s notice and without explanation
  • a telephone call to the worker’s in-laws, during which a partner at the firm initiated a discussion about her work performance
  • a letter raising concerns about the target’s honesty in observing her hours of work, using the firm’s resources for personal use and not accepting instructions
  • suggestions that the target resign after commencing victimisation proceedings • raising an outstanding conveyancing account ‘as a lever’ to force resignation
  • labelling the target ‘shameless’
  • raising performance issues about clerical mistakes that ‘were so inconsequential as to be almost laughable’
  • accusing the target of feigning headaches after being disciplined the day before and arguing with supervisors, and
  • inconsistent disciplinary action when compared with others.
Outcome

The court found the respondent 'embarked on a deliberate, disgraceful and relentless campaign to force the applicant's resignation', accepting that the worker was subjected to 'a pattern of victimisation'. The court granted relief including reinstatement to her former employment and compensation.

Relevance

Although this is not a decision of the Commission, it has been included as an example of bullying in the workplace following complaints made by the employee. The damages/compensation awarded in this case are not available in the Commission as the Fair Work Act does not allow the payment of compensation or damages.

Dillon v Arnotts Biscuits Limited

Print P4843 (AIRC, Tolley C, 10 September 1997).

Facts

The applicant resigned from her employment as a packer on a production line, but subsequently sought reinstatement on the basis that her resignation had been forced by bullying including:

  • ongoing bullying by her supervisor, ‘to the point of reducing her to tears’
  • isolation following her return to work after a work-related illness, including being assigned to an isolated workstation by herself, facing a blank wall with her back to her fellow employees
  • being singled out by a supervisor for ‘special treatment’ to ‘toughen her up’, and
  • selective application of the employer’s return to work rehabilitation policy, to suit the supervisor.
Outcome

The Commission found that the applicant had been subject to ‘incessant bullying, abuse and harassment’ by her team leader and that the applicant did not receive the support she was entitled to ‘as a human being by any level of management at the company’. The applicant was reinstated and awarded all lost income at the rate of pay, including shift allowances she was receiving prior to her dismissal.

Relevance

Although this is a decision of the Commission prior to the introduction of the anti-bullying provisions, it has been included as an example of how bullying may be aggravated by a lack of support at any level of the organisation.

Bullying upwards

New South Wales v Mannall

[2005] NSWCA 367 (28 October 2005).

Facts

The plaintiff claimed her employer was negligent in allowing her to be bullied for approximately two years after being promoted to a team leader position ahead of her former manager. In the worker’s new role she was required to ‘attack the workplace culture’ and assist in an organisational restructure. The worker alleged she was subjected to victimisation, harassment, humiliation and abuse, including:

  • lack of co-operation from the team
  • rudeness, obstruction and a refusal to accept proper direction to cease inappropriate work practices
  • treating the team leader in a demeaning and denigrating manner during meetings
  • ‘day to day undercurrent of reluctant cooperation and at times open hostility’, and
  • excluding the team leader from a meeting convened to document a list of grievances, including a list of ‘inappropriate behaviour by Team Leader’ signed by most of the attendees.
Outcome

The Court held that the worker’s employer had been negligent in failing to respond to her requests for assistance to deal with the team’s insubordination. The decision was affirmed on appeal.

Relevance

Bullying does not necessarily involve conduct of more senior employees towards more junior employees. A more senior employee may be bullied by employees that report to him or her.

Case examples of NOT bullying behaviour

Psychiatric injury not caused by bullying

Aksentijevic v Victoria Racing Club Limited

[2011] VSC 538 (27 October 2011).

Facts

The applicant, who was employed at a racetrack, suffered a workplace injury and was away from work for 2 weeks on WorkCover. When he returned he alleged that he was bullied and required to perform tasks he had not performed before, or which he had to perform alone, including:

  • collecting stones from the sand track
  • collecting manure from the sand track and the Visco track, and
  • mowing around the sand track alone.

The applicant claimed that the tasks were demeaning and humiliating for him and as a consequence, he became stressed. The employer denied allocating him these tasks. The applicant also claimed that he was discriminated against and bullied when he was sent home for not wearing the prescribed uniform shirt.

Outcome

The Court did not accept the applicant’s evidence that he had been required to perform the tasks described. The Court further found that the direction to go home for not wearing the prescribed uniform shirt did not constitute bullying.

Relevance

Reasonable management action carried out in a reasonable manner does not constitute bullying. In this case the court was satisfied that the track manager was fair, but firm, with the employees who worked under him.

Behaviour did not fall within the scope of bullying

Re Ms SB

[2014] FWC 2104 (Hampton C, 12 May 2014).

Facts

The applicant managed a team of employees. It was alleged that two of the employees, who reported to the applicant, started behaving unreasonably towards the applicant by harassing her on a daily basis and spreading rumours about her in the workplace.

One of the employees made bullying allegations against the applicant (immediately prior to the applicant lodging her application). An investigation by a legal firm was arranged by the employer which found that the allegations against the applicant were justified in part, whereas the complaints by the applicant were not substantiated.

The applicant did not rely upon the legal firm’s investigation as evidence of bullying conduct in its own right, but as support for her proposition that there was a risk of ongoing bullying conduct; principally on the basis that no action was being proposed in relation to the employee.

The applicant sought orders from the Commission directed at stopping the alleged conduct of the remaining employee (the other alleged bully having left the organisation), compliance by the employer and others with the workplace bullying policies operating at the workplace, and the monitoring of workplace behaviour by the employer.

Outcome

The Commission was not satisfied that the alleged behaviour occurred and/or was unreasonable in the context that it occurred; some of the behaviour was bordering upon unreasonable but not such as to fall within the scope of bullying behaviour. Also the Commission was not satisfied that the limited degree of unreasonable behaviour by the individuals concerned was such that it created a risk to health and safety. As a result, the Commission was not satisfied that the applicant had been bullied at work and the application was dismissed.

The Commission noted that the applicant had not acted vexatiously in bringing her application and that the application was not made without any foundation. The Commission also noted there were some cultural, communication and management issues in the workplace that needed to be addressed by senior management.

Relevance

It is necessary to examine whether an individual or group of individuals have repeatedly behaved unreasonably towards the applicant, and whether such behaviour has created a risk to health and safety.

No repeated incidents of unreasonable behaviour

Application by Singh

[2015] FWC 5850 (Hampton C, 28 August 2015).

Facts

The applicant was a worker employed by Programmed Integrated Workforce Pty Ltd (PIW) and was often assigned to work at Coca Cola Amatil (CCA).

He alleged that he had experienced an incident where the person named in the application had both verbally and physically assaulted him. The applicant, however, accepted that the conduct only occurred once.

The respondent parties objected to the application on the basis that, even if the incident did occur as the applicant alleged, which was disputed, the behaviour did not amount to bullying within the definition of the Fair Work Act as the unreasonable behaviour had not occurred repeatedly.

Outcome

The Commissioner confirmed the decision in Re Ms SB where it was found that there ‘is no specific number of incidents required for the behaviour to represent ‘repeatedly’ behaving unreasonably (provided there is more than on occurrence), nor does it appear that the same specific behaviour has to be repeated’.

It was reinforced, however, that ‘(t)he definition implies the existence of persistent unreasonable behaviour but might refer to a range of behaviours over time… The unreasonable behaviour must however be repeated’. The application was dismissed.

Relevance

Unreasonable behaviour can include a range of behaviours over time or an unreasonable behaviour that is repeated. In this case a single incident, whilst clearly unreasonable and inappropriate, was not enough to provide the necessary jurisdiction for the Commission to determine this particular application.

The Applicant v General Manager and Company C

[2014] FWC 3940 (Roe C, 17 June 2014).

Facts

The applicant was a training manager responsible for the employer’s training business in Victoria and had a team of seven or eight other employees including trainers. The financial performance of the training part of the business was not considered to be satisfactory. At a national conference the Managing Director announced that reporting arrangements would change.

The General Manager alleged that the applicant avoided him, failed to attend meetings, failed to keep him updated about important information about the business and about staff dissatisfaction, and discouraged the engagement of members of her team with the General Manager. On 30 October 2013 the General Manager called the applicant into his office and told the applicant that her behaviour was not acceptable and that he was not prepared to put up with it continuing.

The applicant alleged that what occurred at this meeting was bullying behaviour. The applicant further alleged that there were a number of subsequent incidents between 30 October 2013 and 28 November 2013, in which the General Manager failed to inform and encourage her involvement in relevant meetings, failed to provide adequate information about reporting responsibilities and expectations, undermined her position by going directly to members of her team, and was overly intrusive and micro-managing.

The applicant submitted that the instances of bullying generally occurred in private exchanges between the General Manager and herself and that in front of others the General Manager did not generally behave unreasonably.

Outcome

The Commission was satisfied that the health and safety of the applicant was negatively impacted and continued to be impacted by what happened at work. However, the Commission found that the only instance of unreasonable behaviour was in the General Manager failing to properly respond to the applicant’s request to have a support person at future meetings. The Commission was not satisfied there were repeated incidents of unreasonable behaviour which were not reasonable management action carried out in a reasonable manner.

Relevance

For orders to be made, the Commission must find repeated instances of unreasonable behaviour that are not reasonable management action carried out in a reasonable manner.

References

[1] Re Ms SB [2014] FWC 2104 (Hampton C, 12 May 2014) at para. 41.

[2] ibid., at para. 43.

[3] House of Representatives Standing Committee on Education and Employment report, Workplace bullying “We just want it to stop”, at p. 15.

[4] Thiess Pty Limited v Industrial Court of New South Wales [2010] NSWCA 252 (30 September 2010) at paras 65–67, [78 NSWLR 94]; Abigroup Contractors Pty Limited v Workcover Authority of New South Wales (Inspector Maltby) [2004] NSWIRComm 270 (24 September 2004) at para. 58, [(2004) 135 IR 317].

[5] Macquarie Concise Dictionary definition Re Ms SB [2014] FWC 2104 (Hampton C, 12 May 2014) at para. 45.

[6] Re Ms SB [2014] FWC 2104 (Hampton C, 12 May 2014) at para. 45.

[7] Newcastle Wallsend Coal Co Pty Ltd v Workcover Authority (NSW) (Inspector McMartin) [2006] NSWIRComm 339 (5 December 2006) at para. 301; Re Ms SB[2014] FWC 2104 (Hampton C, 12 May 2014) at para. 44.

Updated time

Last updated

02 October 2019

 

 

Bookmark/Search this post

Facebook logo Google+ logo Twitter logo

 

Page feedback

Did you find what you were looking for?

Please note: If you would like a response to your question, please contact us or lodge a complaint. This feedback is only about content on this page and will be used to improve website usability. The comments are not monitored for personal information or workplace complaints. 

Mini sites

  • Annual Report 2013–14
    • Reader's guide
    • 1. Overview
      • President's introduction
      • General Manager's overview
      • Performance summary
      • Major achievements 2013–14
    • 2. About the Commission
      • Who we are and what we do
      • Our structure
      • Outcome and program structure
      • Our clients and stakeholders
        • In focus—Small Business Outreach
      • Our future direction
        • In focus–New website
        • In focus–Virtual tour
        • In focus–Mock hearings
      • Our history
    • 3. Performance reporting
      • Overview
      • Legislative amendments
      • Workload
      • Timeliness benchmarks
      • Resolving disputes
      • Determining unfair dismissal applications
      • Setting the minimum wage
        • In focus–Pay Equity Unit
      • Orders relating to industrial action
        • Case study–Emergency Services Telecommunications Authority
        • Case study–Sydney Water
      • Processes relating to modern awards
        • In focus–4 yearly review of awards
      • Approving agreements
        • Case study–Catholic Education Victoria
        • Case study–Orora Fibre Packaging
      • Regulating registered organisations
      • Determining anti-bullying applications
        • In focus–Setting up the anti-bullying jurisdiction
        • Case study–Anti-bullying
      • Key performance indicators
    • 4. Management and accountability
      • Corporate governance
      • Planning and development
      • Ethical standards
      • Accountability
      • Our workforce
      • Employee pay and entitlements
      • Service Charter, complaints and Code of Conduct
      • Financial management
    • 5. Appendices
      • A | Member activities
      • B | List of Members
      • C | Panel assignments
      • D | Methodology for Chart 2–Matters dealt with by the Commission and its predecessors 1998–99 to 2013–14
      • E | Promoting fairness and improving access
      • F | Efficiency and innovation
      • G | Increasing accountability
      • H | Productivity and engaging with industry
      • I | Documents relating to the work of the Commission
      • J | Fair Work Commission addresses
      • K | Lodgment and case load statistics
      • L | Methodology for Chart 6–Number of Commission sittings, various
      • M | Subscription services
      • N | Information on specific statutory requirements
      • O | Fraud Control Certificate
      • P | Fair Work Commission Service Charter
      • Q | Financial statements
        • Independent Audit Report
        • Statement by the General Manager and Chief Financial Officer
        • Statement of Comprehensive Income
        • Statement of Financial Position
        • Statement of Changes in Equity
        • Cash Flow Statement
        • Schedule of Commitments
        • Schedule of Administered Items
        • Notes to the financial statements
          • Note 1: Summary of Significant Accounting Policies
          • Note 2: Events after the Reporting Period
          • Note 3: Expenses
          • Note 4: Income
          • Note 5: Fair Value Measurements
          • Note 6: Financial Assets
          • Note 7: Non-financial Assets
          • Note 8: Payables
          • Note 9: Provisions
          • Note 10: Cash Flow Reconciliation
          • Note 11: Contingent Liabilities and Assets
          • Note 12: Senior Executive Remuneration
          • Note 13: Remuneration of Auditors
          • Note 14: Financial Instruments
          • Note 15: Financial Assets Reconciliation
          • Note 16: Administered Income
          • Note 17: Administered Payables
          • Note 18: Administered Cash Flow Reconciliation
          • Note 19: Administered Contingent Liabilities and Assets
          • Note 20: Appropriations
          • Note 21: Compliance with Statutory Conditions for Payments from the Consolidated Revenue Fund
          • Note 22: Compensation and Debt Relief
          • Note 23: Reporting of Outcomes
          • Note 24: Net Cash Appropriation Arrangements
      • R | Agency resource statement
      • S | Expenses and resources for outcome
      • T | Glossary
      • U | Acronyms and abbreviations
      • V | List of requirements
    • Letter of transmittal
    • Inquiries and copyright
    • Videos
    • Downloads
  • Annual Report 2014–15
    • Introduction
    • Preliminary information
      • Contents
      • Letter of transmittal
      • Readers guide
    • Part 1 Overview
      • President's introduction
      • General Manager's overview
      • Performance summary
      • Major achievements
    • Part 2 About the Commission
      • Outcome and programme structure
      • Who we are and what we do
      • Our structure
      • Our history
      • Our clients and stakeholders
      • Our future direction
      • Future directions - Continuing the change program
    • Part 3 Performance reporting
      • Overview
      • Legislative amendments
      • Workload
      • Timeliness benchmarks
      • Resolving disputes
      • Unlawful termination disputes
      • Determining unfair dismissal applications
      • Setting the minimum wage
      • Orders relating to industrial action
      • Processes relating to modern awards
      • Enterprise agreements
      • Determining anti-bullying applications
      • Regulating registered organisations
      • Key performance indicators
    • Part 4 Management and accountability
      • Corporate governance
      • Planning and development
      • Workplace health and safety
      • Business continuity
      • Ethical standards
      • Fair Work Commission values
      • Freedom of information
      • Accountability
      • The Commission's workforce
      • Employee pay and entitlements
      • Service Charter, complaints and code of conduct
      • Financial management
      • Agency resource statement
      • Expenses and resources for outcome
    • Acronyms and abbreviations
    • Part 5 Appendices
      • Appendix A
      • Appendix B
      • Appendix C
      • Appendix D
      • Appendix E
      • Appendix F
      • Appendix G
      • Appendix H
      • Appendix I
      • Appendix J
      • Appendix K
      • Appendix L
      • Appendix M
      • Appendix N
      • Glossary
  • Annual Report 2015–16
    • Preliminary information
      • Letter of transmittal
      • Readers' guide
    • Part 1: Overview
      • President's report
      • General Manager's report
    • Part 2: About the Commission
    • Part 3: Performance
      • Performance summary
      • Annual performance statements 2015–16
      • Operational performance
        • Applications lodged
        • Hearings & conferences
        • Information & assistance
        • Major application types
          • Unfair dismissals
          • General protections & unlawful termination disputes
          • Anti-bullying
          • Enterprise agreements
          • Resolving disputes
          • Industrial action
        • New Approaches
        • Setting the minimum wage
        • Modern awards
        • Regulating registered organisations
        • Appeals
      • Significant decisions
      • Case studies
        • Case study: Enterprise agreements pilot
        • Case study: Patrick & the MUA
        • Case study: Encouraging regulatory compliance
    • Part 4: Management & accountability
      • Corporate governance
      • Financial management
      • Other mandatory information
    • Appendices
      • Appendix A: List of Members
      • Appendix B: Panel assignments
      • Appendix C: Member activities
      • Appendix D: Lodgment & case load statistics
      • Appendix E: Registered organisations data
      • Appendix F: Performance reporting for the RSRT
      • Appendix G: Financial statements
      • Appendix H: Subscription services
      • Appendix I: Service charter
      • Appendix J: List of requirements
      • Appendix K: Expense & resources outcome, agency resource statement & financial performance analysis
    • Glossary
    • Acronyms & abbreviations
    • Contact us
  • Annual Wage Review 2013–14
  • Anti-bullying benchbook
    • Glossary & naming conventions
    • Overview of benchbook
    • What is workplace bullying?
    • Who is covered by workplace bullying laws?
      • Definition of ‘worker’
      • Definition of ‘constitutionally-covered business’
        • What is a person conducting a business or undertaking?
        • What is a Territory or a Commonwealth place?
        • What is a constitutional corporation?
        • What is the Commonwealth?
    • When is a worker bullied at work?
      • What does ‘at work’ mean?
      • Risk of continued bullying
      • Reasonable management action
    • Making an application
    • Responding to an application
    • If the worker has been dismissed
    • Commission processes
      • Procedural issues
      • Representation by lawyers and paid agents
    • Evidence
    • Outcomes
      • Dismissing an application
      • Contravening an order of the Commission
    • Associated applications
      • Costs
      • Appeals
      • Role of the Court
  • Corporate Plan 2018–19
    • 1. Message from the General Manager
    • 2. Purpose
    • 3. Operating environment
    • 4. Culture
    • 5. Capability
    • 6. Performance
  • Corporate Plan 2019–20
    • 1. Message from the General Manager
    • 2. Purpose
    • 3. Operating environment
    • 4. Our focus
    • 5. Culture
    • 6. Capability
    • 7. Performance
  • Corporate Plan 2020-21
    • 1. Message from the General Manager
    • 2. Purpose
    • 3. Operating environment
    • 4. Key activities
    • 5. Capability
    • 6. Risk
    • 7. Performance
  • Enterprise agreements benchbook
    • Glossary & naming conventions
    • Overview of benchbook
    • What is an enterprise agreement?
      • Single-enterprise agreement
      • Multi-enterprise agreement
      • Differences between single and multi-enterprise agreements
      • Greenfields agreement
    • Content of an enterprise agreement
      • Permitted matters
      • Coverage
      • Scope – who will be covered?
      • Terms & conditions of employment
      • Base rate of pay
      • Nominal expiry date
      • Mandatory terms
      • Flexibility term
      • Consultation term
      • Dispute settlement term
      • Optional terms
      • Terms that cannot be included
        • Terms that exclude the NES
        • Unlawful terms
        • Designated outworker terms
    • Agreement making process
      • Representation
      • Employee right to be represented
      • Bargaining representatives
    • Bargaining
      • Good faith bargaining
      • How long does bargaining take?
    • Voting
      • Voting process
      • Who can vote?
      • Timeframe for vote
      • Voting methods
      • When is an agreement made?
      • If parties cannot agree
    • Making an application
      • Common defects & issues
        • National Employment Standards
        • Better off overall test
        • Mandatory terms
        • Other terms
        • Pre-approval requirements
        • Forms & lodgment
      • Who must apply
      • Timeframe to apply
      • Material to accompany application
      • Signing an agreement
      • Employer must notify employees
    • Commission approval process
      • Genuine agreement
        • Minor procedural or technical errors
      • Where a scope order is in operation
      • Particular kinds of employees
      • Better off overall test (BOOT)
        • When an agreement passes
        • Classes of employees
        • Which award applies
        • Advice about coverage
        • Loaded rates of pay
      • Public interest test
      • Undertakings
      • Powers of the Commission
    • Associated applications
      • Majority support determinations
      • Authorisations to commence bargaining
        • Single interest employer authorisations
        • Ministerial declaration
        • Low-paid authorisations
      • Scope orders
      • Bargaining orders
      • Serious breach declarations
      • Disputes
      • Workplace determinations
        • Low-paid
        • Industrial action related
        • Bargaining related
      • Role of the Court
      • Appeals
      • Varying enterprise agreements
        • Varying by agreement
        • Ambiguity or uncertainty
        • Discrimination
      • Terminating enterprise agreements
        • Terminating by agreement
        • After its nominal expiry date
      • Terminating individual agreements
  • General Manager reporting requirements
  • General protections benchbook
    • Glossary & naming conventions
    • Overview of benchbook
      • When is a person covered by the general protections?
    • What are the general protections?
    • How do the general protections work?
      • Rebuttable presumption as to reason or intent
    • Coverage for general protections
      • What is a constitutionally-covered entity?
      • What is a Territory or a Commonwealth place?
      • What is a trade and commerce employer?
      • What is a Territory employer?
      • What is a national system employer?
    • What if I am not covered?
    • What is adverse action?
      • What is dismissal?
      • Injuring employee in their employment
      • Altering the position of the employee
      • Discriminating
      • Threatened action and organisation of action
      • Exclusions
    • Workplace rights protections
      • Meaning of workplace right
      • Coercion
      • Undue influence or pressure
      • Misrepresentations
      • Requiring the use of COVIDSafe
    • Industrial activities protections
      • What are industrial activities?
      • Coercion
      • Misrepresentations
      • Inducements – membership action
    • Other protections
      • Discrimination
        • Race
        • Colour
        • Gender identity & sexual orientation
        • Age
        • Physical or mental disability
        • Marital status
        • Family or carer’s responsibilities
        • Pregnancy
        • Religion
        • Political opinion
        • National extraction
        • Social origin
      • Exceptions
      • Temporary absence – illness or injury
      • Bargaining services fees
      • Coverage by particular instruments
      • Coercion – allocation of duties to particular person
    • Sham arrangements
      • Misrepresenting employment
      • Dismissing to engage as independent contractor
      • Misrepresentation to engage as independent contractor
    • Making an application
      • Dismissal applications
        • Timeframe for lodgment
        • Extension of time for lodging an application
      • Non-dismissal applications
      • Other types of applications
        • Multiple actions relating to dismissal
        • Unfair dismissal
        • Unlawful termination
        • Court application
        • Discrimination
    • Power to dismiss applications
    • Evidence
    • Commission process
      • Conferences & hearings
      • Dealing with different types of general protections disputes
      • Rescheduling or adjourning matters
      • Representation by lawyers and paid agents
      • Bias
    • Outcomes
    • Costs
      • When are costs ordered by the Commission?
      • Costs against representatives
    • Appeals
    • Role of the Court
      • Enforcement of Commission orders
      • Types of order made by the Court
  • Industrial action benchbook
    • Glossary & naming conventions
    • What is industrial action?
      • Unprotected industrial action
        • Orders to stop or prevent unprotected industrial action
      • Protected industrial action
        • Immunity
        • Common requirements
        • Employee claim action
        • Employer response action
        • Employee response action
        • Pattern bargaining
    • Taking protected industrial action
      • Protected action ballots
        • Who may apply?
        • Making an application
        • Commission process
        • Varying a protected action ballot order
        • Revoking a protected action ballot order
      • Voting
        • Ballot agents
        • Who may vote – roll of voters
        • Ballot papers
        • Voting procedure
        • Scrutiny of the ballot
        • Results of the ballot
        • When is industrial action authorised?
      • Notice requirements
      • Commencing protected industrial action
    • Payments relating to industrial action
      • Partial work bans
      • Unprotected industrial action – payments
      • Standing down employees
    • Suspension or termination of protected industrial action
      • Powers of the Commission
        • When the Commission may suspend or terminate
        • When the Commission must suspend or terminate
          • Threats to persons or the economy
          • Suspending industrial action
        • Requirements relating to a period of suspension
      • Powers of the Minister
    • Enforcement
    • Appeals
  • JobKeeper benchbook
    • Glossary
    • Introduction
      • Provisions of the Fair Work Act
    • JobKeeper enabling directions – general
      • Service & entitlement accrual
      • When a JobKeeper enabling direction will have no effect
      • Stand downs that are not jobkeeper enabling stand downs
      • Employee requests
    • Jobkeeper enabling stand down directions – entitled employers
      • Directions about duties & location of work
    • Jobkeeper enabling directions – legacy employers
      • Jobkeeper enabling stand down directions – legacy employers
      • Directions about duties & location of work – legacy employers
      • Termination of a jobkeeper enabling direction – legacy employers
    • Agreements about days or times of work
      • Agreements about days or times of work – entitled employers
      • Agreements about days or times of work – legacy employers
      • Termination of an agreement about days or times of work
    • Employer payment obligations
      • Wage condition
      • Minimum payment guarantee
      • Hourly rate of pay guarantee
    • Agreements about annual leave
    • Protections
    • Disputes we cannot assist with
    • Applications to deal with a dispute
      • Who can make an application
      • Responding to an application
      • Objecting to an application
      • Discontinuing an application
    • Commission process
      • General information
      • Conferences & hearings
      • Procedural issues
    • Evidence
    • Outcomes
      • Contravening an order
      • Appeals
      • Role of the Court
    • Attachments
  • Modern Awards Review 2012
    • Introduction
      • Modern Awards Review 2012
  • Sir Richard Kirby Archives
    • Home
    • Sir Richard Kirby
    • About the Archives
    • Cases
      • Case
      • The Honourable Justice Henry Bournes Higgins (1851–1929)
    • Centenary
    • Exhibitions
      • Exhibition launch: The history of the Australian minimum wage
      • Guide – Opening Exhibition
      • International Industrial Dispute Resolution Conference
        • Speaker – Justice Alan Boulton AO
        • Speaker – Mr Arthur F Rosenfeld
        • Speaker – Mr Craig Smith
        • Speaker – Mr James Wilson
        • Speaker – Mr Kieran Mulvey
        • Speaker – Mr Peter Anderson
        • Speaker – Ms Ginette Brazeau
        • Speaker – Ms Nerine Kahn
        • Speaker – Ms Rita Donaghy CBE
        • Speaker – Ms Sharan Burrow
        • Speaker – Senator Guy Barnett
        • Speaker – The Hon. Julia Gillard
      • The Journey
        • Court
          • Early years
          • New court
            • Profile of Justice O'Connor
            • First registration of an industrial organisation
          • Judges & conciliators
          • The Boilermakers' Case
            • The dispute & appeals
        • Commission
          • Post Boilermakers 1956-1973
          • Hawke & Keating governments
            • Industrial Relations Court
          • Howard Government
        • Fair Work Australia
          • The Fair Work system
          • About Fair Work Australia
          • Transition
          • Fair Work timeline
      • The history of the Australian minimum wage
        • The Great Strikes
        • The first minimum wage: The Victorian minimum wage
        • The Harvester Decision
        • The impact of the Great Depression
        • Working it out: Cost of living versus capacity to pay
        • The removal of award rate discrimination
        • The wage explosion & economic crisis
        • The modern era: The development of a modern minimum wage
      • Treasures of the archives
        • Launch speech?Treasures of the Archives
        • 1. Professor Isaac
        • 2. Register of organisations
        • 3. Perlman letters
        • 4. Sir Richard Kirby photograph
        • 5. Oral history program
        • 6. AIRC sign
        • 7. Folder of wage decisions
        • 8. Centenary exhibition
        • 9. Women's exhibition poster
        • 10. Isaac letters
    • The modern era
    • Past Presidents
    • Past Members
      • Past Members 1956 to present
      • Past Members to 1956
  • Unfair dismissals benchbook
    • Overview of unfair dismissal
    • Glossary & naming conventions
    • Coverage for unfair dismissal
      • Who is protected from unfair dismissal?
      • People excluded from national unfair dismissal laws
        • Independent contractors
        • Labour hire workers
        • Vocational placements & volunteers
        • Public sector employment
      • Constitutional corporations
      • High income threshold
      • Modern award coverage
      • Application of an enterprise agreement
      • What is the minimum period of employment?
        • How do you calculate the minimum period of employment?
        • What is continuous service?
        • What is an excluded period?
      • Bankruptcy
      • Insolvency
    • What is dismissal?
      • When does a dismissal take effect?
      • Terminated at the employer's initiative
      • Forced resignation
      • Demotion
      • Contract for a specified period of time
      • Contract for a specified task
      • Contract for a specified season
      • Training arrangement
      • What is a transfer of employment?
      • Periods of service as a casual employee
      • What is a genuine redundancy?
        • Job no longer required due to changes in operational requirements
        • Consultation obligations
        • Redeployment
      • What is the Small Business Fair Dismissal Code?
    • What makes a dismissal unfair?
      • Valid reason relating to capacity or conduct
        • Capacity
        • Conduct
      • Notification of reason for dismissal
      • Opportunity to respond
      • Unreasonable refusal of a support person
      • Warnings – unsatisfactory performance
      • Size of employer's enterprise and human resources specialists
      • Other relevant matters
    • Making an application
      • Application fee
      • Timeframe for lodgment
      • Extension of time for lodging an application
      • Who is the employer?
      • Multiple actions
      • Discontinuing an application
    • Objecting to an application
    • Commission process
      • Conciliation
      • Hearings and conferences
      • Preparing for hearings and conferences
      • Representation by lawyers and paid agents
      • Rescheduling or adjourning matters
      • Bias
    • Remedies
      • Reinstatement
        • Order for reinstatement cannot be subject to conditions
        • Order to maintain continuity
        • Order to restore lost pay
      • Compensation
        • Calculating compensation
        • Mitigation
        • Remuneration
        • Other relevant matters
        • Compensation cap
        • Instalments
    • Dismissing an application
    • Evidence
    • Costs
      • Costs against representatives
      • Security for costs
    • Appeals
      • Staying decisions
    • Role of the Court
  • Waltzing Matilda and the Sunshine Harvester Factory
    • Introduction
    • The book
      • Book launch
    • The film
      • Film launch
    • Historical material
      • 38 Hour Week Wage Principle [1983]
      • 40 Hour Week Case [1947]
      • 44 Hour Week Case [1927]
      • Apprenticeship indentures
      • Australian Minimum Wage and fitter (trades) rate since 1906
      • Boot Trades Case
      • Careers in Bootmaking and Boot Repairing
      • Cattle Industry Case 1966
      • Commercial Printing Case [1936]
      • Commonwealth Conciliation and Arbitration Act 1904
      • Cost of living newspaper articles from the early 1900s
      • Debates
      • Equal Pay Case 1969
      • Equal Pay Case 1972
      • Fruit Pickers Case
      • Gas Employees Case
      • Graph of Australian Minimum Wage since 1906
      • Harvester Case
      • Historic case judgments on the Fair Work Commission's website
      • Kingston's evidence
      • Linesmen's Case
      • Maternity Leave Case [1979]
      • Metal trades base level minimum wages [1967–2015]
      • Methods of wage adjustment
        • Establishing an Australian Minimum Wage 1907?1922
          • The origins of the Australian minimum wage
          • The 'needs' principle and 'capacity to pay'
          • Women's wages
          • First indexation decision
        • Quarterly indexation 1922–1953
        • The Great Depression 1931
        • Prosperity loadings 1937
        • World War II 1939–1945
        • The post-war period: 1953–1965 basic wage inquiries
        • The total wage 1966–1967
        • Removal of discrimination in award rates
        • Reintroduction of quarterly wage indexation 1975–1978
        • Six monthly wage indexation 1978–1981
        • Wage explosion 1981–1982
        • Reforming awards and work and management practices 1987–1991
        • Six monthly wage indexation 1983–1987
        • Enterprise bargaining and a minimum wage safety net 1991–1996
        • Statutory adjustments
        • The minimum wage in real terms
      • Mrs Beeton's cookbook
      • Paternity Leave Case [1990]
      • Personal/Carer's Leave Test Case [1995]
      • Piddington report
      • Re Bagshaw [1907]
      • Significant cases on the Fair Work Commission's website
      • Statistics for the purpose of comparison with the Australian minimum wage
      • The Amalgamated Society of Engineers v. The Adelaide Steam-ship Company Limited and Others
      • The Australian minimum wage from 1906
      • The Federated Marine Stewards and Pantrymen's Association v. The Commonwealth Steamship Owners' Association and Others
      • The Victorian minimum wage 1896
        • Legislative Council Second Reading Speech to the Factories and Shops Bill 1896
      • The first Award: 1906 Steam-ship Crew
      • 100 years of the minimum wage—Statistical comparison
    • Mrs Beeton's cookbook
    • Glossary
    • Related sites
    • Educational materials
  • AWRS First Findings report

Footer

  • Site map
  • Legal
  • Copyright
  • Accessibility

Coronavirus (COVID-19) information