Anti-bullying Series 3 – How will the Fair Work Commission Manage a Stop Bullying Order

The third in our series of online training sessions briefing HR professionals and managers about the upcoming Anti-Bullying Measures to be introduced on January 1 under changes to the Fair Work Act. In this session, we explore how the Fair Work Commission will manage Stop Bullying Orders.

0:15 – The Legislation

1:01 – Worker in a constitutionally covered business

1:29 – Workplace bullying occurs when…

4:07 – If a worker has ticked all the boxes thus far…

6:43 – Making an application

8:18 – Draft form F72

9:05 – Draft form F72 cont’d

10:13 – FWC to deal with F72 application

12:13 – Response to being served a copy of F72

13:13 – Draft Form F73

13:41 – Response to being served a copy of F72

13:54 – Draft Form F74

14:52 – Powers of the Commission

15:43 – Legal or other representatives

16:38 – Rules of Evidence

17:59 – Power to dismiss

Video Transcript

Good morning and welcome to our 3rd webinar in this six part series. This morning we are going to be discussing; How Will The Fair Work Commission Manage A Stop Bullying Order?

0:15 – The Legislation

Firstly, I wanted to review some of the legislation and some of the concepts that we’ve been over in the earlier part of the series, and that is part 6-4B of the legislation  – workers bullied at work.

To be able to apply the Fair Work Commission for an order to stop the bullying, we need to have a worker who has been bullied at work. The role of the Fair Work Commission and the role of this legislation will be from stopping workers from being bullied at work. A worker who reasonably believes that he or she has been bullied at work may apply to the Fair Work Commission for an order. These are the conditions in which we start from, that allow a worker to apply to the Fair Work Commission for stop bullying order.

1:01 – Worker in a constitutionally covered business

There are some other caveats or parameters around this and that is that the worker must be in a constitutionally covered business and we’ll discuss that in the moment. The worker must have the same meaning as a Work Health Safety Act and that’s a common known fact. Again, we’ve looked at this but just a brief reflection on the concept of worker and who is covered by this part of the act.

 

1:29 – Workplace bullying occurs when…

For a worker to make an order for a stop bullying through an application, there needs to have been an allegation of workplace bullying. The definition of bullying given to us is where an individual or group of individuals repeatedly behaves unreasonably towards the worker and that behaviour creates a risk to health and safety.

So, if we have a look at that definition for a moment we’ll notice that the wording doesn’t say where a worker or group of workers repeatedly behaves unreasonably towards a worker. The use of the word individual has opened this legislation up to mean that it could be a consultant coming in from outside, it could be a Union Representative or official, it could be a member of the public who has repeatedly behaved unreasonably towards the worker and that behaviour has created risks to health and safety.

Remember we’ve discussed that in determining whether the behaviour was reasonable or unreasonable will require the objective test to be applied to that and the Fair Work Commissions have indicated that just because an aggrieved worker believes they’ve been treated unreasonably does not mean that it will be considered so and an objective test will be applied. They’ve also indicated that the behaviour doesn’t actually create an illness but just the risks that the health and safety injury could occur. However, the Fair Work Commission have indicated that they may go as far to bring in professional advice as to whether the behaviour has contributed or could contribute to a psychological illness or injury and will the determination of bullying require that a professional psychiatric or psychological test is carried out to be able to diagnose psychological injury or illness or will there need to be some professional recognition of symptoms of a psychological illness or injury before there is going to be a determination of bullying being made.  Also recall that the definition of workplace bullying given to us by Safe Work Australia and also taken up by the Fair Work Commission is that bullying will not be reasonable management action carried out in a reasonable manner. We had a look in the last set of slides and webinars about what management action is and the Fair Work Commission will require it was reasonable that the management action was applied or carried out and it must be carried out in a reasonable manner to ensure that it’s not considered bullying.

4:07 – If a worker has ticked all the boxes thus far…

If a worker has ticked all the boxes thus far, they are a worker define under that Work health Safety Act. They reasonably believe they’re being bullied at work. The concepts of that work we haven’t defined or clarified very much. It is yet to be defined under legislation or through case law. At the moment we only have worker’s compensation cases which, looked at the term in the course of employment and the Fair Work Commission have indicated the term ‘at work’ will have a narrower definition than in the course of employment.

But they have also indicated that this will create a lot of discussion in this area because anywhere that work is carried out is considered to be the workplace. A worker could be working at home and put in an application for a stop bullying order because they believed they’ve been bullied while they’ve been working at home. That could raise some interesting questions as to were they working at home at the time that they were bullied? It is going to be an interesting space to watch next year, isn’t it? The worker needs to be that as defined under the Work Health Safety Act reasonably believes they’re being bullied at work, believe the behaviour creates risks to health and safety, the Fair Work Commission now indicated there could be some other parameters to that in terms of getting some sort of diagnosis or recognition of symptoms to support that.

The alleged bullying behaviour cannot be reasonable management action carried out in a reasonable manner and the worker must be covered by constitutionally covered business. A constitutionally covered business is a constitutional cooperation, the Commonwealth, a Commonwealth authority, or body corporate incorporated in a territory. But a worker will not be covered by this part of the act if they are a member Australian Defence Force. If they’re an elected member of a local authority acting in the capacity as a member of a local authority or they are a volunteer within an association that only consists of volunteers and does not employ anybody. If the worker can tick all those boxes then they can make an application for a stop bullying order.

The Fair Work Commission does believe that they’re going to receive a number of applications which do not meet this criteria and therefore they will not have any standing in terms of jurisdiction and so they will be dismissed on those grounds. So, I think it is going to be difficult for a worker to be able to objectively know that they can tick all these boxes and put in their application. The Fair Work Commission is thinking that they will receive a number of applications that they have no power to deal with.

6:43 – Making an application

In making an application the person who believes they have been bullied must submit an F72 application form. Making an application is considered a protected workplace right and so employers and principals will need to make sure that they do not adversely act against somebody who has made an application because the making of an application is a protected workplace right.

The application can be lodged in person or via these other modes. It can also be done over the telephone with a payment of an application fee. The applicant make seek to have a waiver of the application fee due to financial hardship and the applicant may also seek further information from the Fair Work Commission as they are filling out their form.

However, the Fair Work Commission has indicated that they will not offer legal advice to somebody making an F73 application, but they will offer information about processes within the commission, about how to make an application or fill out forms or where to find other useful documents, such as legislation and decision or where they can go to get assistance in filling their form and what organisations they might contact for legal information, but they will not give out legal advice.

The applicant may also seek to bring in their own legal representation or a paid agent to help them fill in or submit the application form.  I just made a note there that at any stage the applicant can chose to discontinue their application.

8:18 – Draft form F72

The draft form of F72 asked for a whole lot of details about the applicant, their representative (legal paid), employer or principal, who the respondents are, who their employer or principal is? What the current employment or engagement at the workplace is where the bullying occurred? Are they still working there? Are they still engaged there? Have they left? Have they been dismissed? What capacity were they’re engaged in? Whether they’re an employee, a consultant, a contractor, trainee, apprentice, etc…

They must give a description of the alleged behaviour, examples of the behaviour and the number of times it occurred. They must report if the incidents were reported and they must also disclosed whether they were being performed managed or discipline at that time.

9:05 – Draft form F72 cont’d

They must also disclose if there is a bullying policy and a grievance prcedure, or complaints handling procedure, and if that has been followed. There are also asked to determine if there’s an immediate risks to the health and safety in the workplace because the Fair Work Commission will need to prioritise how they approached all of these applications.

The application form asks if the complaint has been raised with another agency and what sort of remedy the applicant is seeking and the types of remedy that they offer and the applicant could I supposed come up with others, but the Fair Work Commission is setting the standards by offering these types of remedies to… It would be things such as counselling, an apology, they are looking for the organization to investigate or reinvestigate, are they looking for a transfer to another work area or change of roster, are they looking to the organisation to develop or improve in their policies and procedures or are they looking for an order from the Fair Work Commission to stop the bullying.

10:13 – FWC to deal with F72 application

Once an applicant has submitted their application to the Fair Work Commission, the commission must start to deal with the application within 14 days and we know that all that is said in this matter is that, they must start to inform themselves of the matter. The Fair Work Commission has not indicated what that might mean.

However, they have indicated that for once they received an application they will apply a triage process to that application and that will involve contacting the applicant, checking the details, and checking if the applicant wishes to proceed, assessing the application for its jurisdictional application. Does it actually meet the jurisdictional requirements? What would be its priority be to address this or should it be dismissed? And then preliminary report will be written and provided to the panel head of the commission who will assess and if the assessment is made not to dismiss then the Fair Work Commission will serve a copy of the F72 to the employer or principal who employs or engages the applicant and a copy to any of their legal representatives.

On the next business day the Fair Work Commission must also serve a copy of the F72 to the employer or the principal of the respondent, and also to the respondent or respondents and their legal representatives. As indicated if the Fair Work Commission believes that they cannot issue a stop bullying order for whatever reason, the application will be dismissed. This may happen before the F72 is served to the employer and respondents, but it may also happen at another stage throughout the process. Once the Commission has served the F72 to all the parties and they are then moved to receive a response.

12:13 – Response to being served a copy of F72

Each party who receives the F72 must respond back to the Fair Work Commission within 7 days.

Not only must they respond back to the Fair Work Commission but unless directed otherwise they must also serve a copy of their respond forms back to all the other parties. So an employer or principal will be required to use an F73 form and serve a copy to the applicant, any other principal or employer of the respondents, their legal representatives, and do so within 7 days.

Because all of these forms are going to be provided to every party within the matter, every party has been warned by the Fair Work Commission to read all the information carefully before responding. The Fair Work Commission has indicated that they do not expect the employer or principal to provide information which may be self-incriminating in terms of breaches of the Work Health Work Safety Act for example or criminal offences. They can withhold information if they believe it’s necessary to do so.

13:13 – Draft Form F73

The F73 form that the principal or employer will be expected to complete, asks if they are aware of the alleged bullying behaviour, if the worker has ever made any complaints around that bullying behaviour. If they have a bullying policy and a grievance dispute procedure, if that’s being followed? Was the worker being performance managed or facing disciplinary action? And the only ground on which they can object to the F72 is through jurisdictional objections.

13:41 – Response to being served a copy of F72

The respondents will also be served a copy of the F72 and they must reply within 7 days as well. They must provide a copy to all the other parties. They are warned to read all the information very carefully before responding.

13:54 – Draft Form F74

They are asked about who their employer or principal is? There current employment status. If they are aware of any those alleged bullying behaviours and they do not have to complete those answers if they believe they might be incriminating themselves. They need to respond to the claims being made in the F72 form, indicate whether any concerns have been previously raised by their employer or principal. They can only make an objection on jurisdictional grounds as well.

I think this is going to raise some interesting areas where, perhaps an applicant has complained to their employer or principal and they have not done anything about it. They haven’t told the alleged respondent or the respondent about these alleged behaviours and this is going to come out through this paper work where perhaps the employer hasn’t done anything about it and the respondent actually says “No I was never told about these behaviours. I was never alerted to them.”

14:52 – Powers of the Commission

The Commission once they receive all of these documents then has the flexibility to further inform itself of the matter and that would be to collect further information and evidence. They may require somebody to attend the Commission. They may require further written or oral submissions and they will gather more documents and evidence.

Once that’s done they will make a detailed report and submit that to the panel head of the Commission who will then decide on the steps forward. It may be that the application is dismissed or may be the decision is made to go to mediation. It could be that the panel head decides that a member of the Commission will conduct a preliminary conference or hearing and if the Fair Work Commission member needs to make any jurisdictional determination as well.

15:43 – Legal or other representatives

In terms of legal representation or representation by a paid agent, each party is allowed to have a paid agent to prepare and submit their application form and correspond with the Fair Work Commission on their behalf. It is within The Fair Work Act that any parties to a conference or hearing being conducted by a commission member must apply to have representation by a lawyer or paid agent. However, it’s not in the act that this application has to be made and so where s mediation is being conducted by an employee of the Fair Work Commission in relation to a stop bullying application, the parties are allowed to have representation by a lawyer or paid agent. The Fair Work Commission has indicated that from past experience having a lawyer present at mediation often helps moved the process forward.

16:38 – Rules of Evidence

The Fair Work Commission will not be bound by the rules of evidence and procedures although it will consider them relevant especially if it causes unfairness between the parties. What this is saying to us is that the Fair Work Commission will make a decision based on the balance of probabilities, which is going to be very important in terms of how persuasive each party can be and part of that will not just be how they present and what they say but also what sort of documentation is available as well.

The Fair Work Commission will allow the rules of evidence to provide general guidance as to how it chooses to inform itself. The Fair Work Commission must act judicially and in accordance with the procedural fairness and impartiality and they are expected to deal with them as quickly, effectively, transparently, and without unnecessary technicality or formality.

Although we see this as the objective of the Fair Work Commission there are already concerns being raised about any findings they might make and what that might empower parties to do as a further step. Will parties then be able to use those findings in the worker’s compensation claim or for a tort claim? It’s going to be a very interesting place to watch here.

17:59 – Power to dismiss

The Fair Work Commission does have the power to dismiss applications. An applicant may choose to discontinue their applications themselves, but the Commission may also choose to dismiss an application if it’s not made in accordance with the Fair Work Act. If it’s considered to be frivelous or vexatious or they considered that it has no reasonable prospect of success.

The purpose of an application is to allow the Fair Work Commission to make an order to stop the bullying. It’s a preventative measure. It’s not a measure there, a punitive measure to award damages or compensation amounts. It’s not there to actually primarily to substantiate cases of bullying, it’s there to actually prevent bullying from reoccurring. If there is no prospect of being an order to prevent bullying then it will not have a reasonable prospect of success and it can be dismiss.

The Fair Work Commission will also dismiss applications which might involve matters relating to Australia’s Defence and Security. If a Chief of Defence, Director General of Security, or the Director General of the Australian Secret Intelligence services makes a declaration that a specific activity is not to be included or considered within the Fair Work Act; workers bullied at work provision then the Fair Work Commission will have to dismiss an application that may put at risk the nation’s security.

I hope you enjoyed that webinar. I hope you join us for our next in the series and in that webinar will be looking at What Type of Orders Can We Expect the Fair Work Commission to Impose? Thank you for joining us.

About the Author

Catherine Gillespie brings a wealth of skill to her clients. With particular expertise in teaching communication and workplace conflict resolution skills, Catherine has made a marked difference to the organisations she has worked with. She empowers teams and managers to adopt constructive styles that support harmony, productivity and progress in the workplace.

Leave a Reply 1 comment

Workplace Conflict Resolution - December 11, 2013 Reply

Leave a Reply: