Anti-bullying series 4 – What type of orders can we expect the Fair Work Commission to impose?

The fourth 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 what type of orders we can expect the Fair Work Commission to impose.

0:15 – The role of the FWC:

2:57 – A valid application

3:40 – FWC must consider

4:59 –FWC must consider

6:52 – Power to dismiss

8:13 – But….

9:23 – In general:

10:02 – The focus

10:27 – Types of orders

11:24 – Breaches of an order

Video Transcript

Welcome to our 4th webinar in this six part series. Today we are going to be discussing What Types of Orders can we expect the Fair Work Commission to impose?

0:15 – The role of the FWC:

To be able to understand the types of orders that the Fair Work Commission can imposed we need to really go back and have a look at what the role of the Fair Work Commission is in this anti-bullying measure process. Their role is going to be to determine if a valid application was made. It may be their role to determine whether a worker has been bullied at work. But it definitely will be their role to determine whether there is a risk that the worker will be continued to be bullied at work.

I know that sounds a bit confusing.  Why I stated what I said is that if there is no risk or the Fair Work Commission believes that there is no risk that the worker will continue to be bullied at work and they make that determination very early on. For example, if an organisation has already separated workers, or if they have already dismissed the alleged bullier for example, then the Fair Work Commission may determine there is no risk that the bullying behaviour will continue and therefore they will not need to consider whether to make a stop bullying order and therefore there is no need to determine whether a worker has been bullied or not.

That is why I’ve said not in every case will the Fair Work Commission need to determine if a worker has been bullied, but if an application isn’t dismissed earlier throughout the process they will need to determine has the worker been bullied because that will then lead to, is there a risk that the worker will continue to be bullied at work?

The act empowers the Fair Work Commission to make any orders it considers appropriate except the Fair Work Commission cannot order reinstatement or payment of a pecuniary amount to prevent the worker from being bullied at work. There is no award of compensation for damages, etc. to be made. The Fair Work Commission will not encourage any conversations around monetary settlement even if the parties want to actually go to that place and discuss that. The Fair Work Commission will discourage conversations around monetary settlement and will leave it to the parties to discuss that if they wish to at a later stage, but they will not entertain that.

The Fair Work Commission will not order reinstatements. However, interestingly they have said that they may order the dismissal of the bully if they believe that’s what’s required to prevent the bullying from reoccurring. Which could raise an unfair dismissal but that’s interesting that they considered that their orders could be that far reaching.

2:57 – A valid application

Before the Fair Work Commission can move to making an order they firstly have to determine if an application is valid. Firstly, they need to check that the worker is a worker as defined under that WHS act. That they are working in a constitutionally covered business. That they’ve got enough grounds to reasonably believe that they were being bullied, and that it creates a risk to health and safety. The Fair Work Commission will need to also determine if there was reasonable management action involved and whether that was reasonable or not.

Of course to be a valid application, the applicant must have completed and submitted their F72 application form as we’ve discussed in our last webinar.

3:40 – FWC must consider

Once the Fair Work Commission in receipt of all the paperwork, the F72, 73, and 74, we’ve discussed in the last webinar that they are then going to have to collect further information as they see appropriate to be able to write a more detailed report and submit that to the panel head of the commission. The panel head of the commission will then determine whether this matter is best to go to mediation or whether it’s best to go to a preliminary conference or hearing, and the panel head will also determine whether a commission member needs to make a jurisdictional determination if there’s been any concern around that.

The Fair Work Commission has indicated that mediation may not be an appropriate process if it’s a genuine complaint, especially if the bullying has been of a criminal nature. Because they recognise that mediation could be used as a vehicle to further bully the applicant. However, there is recognition that if bullying has been substantiated it may be an appropriate process for the parties to work out how they are going to interact and work with each other or not, and what might be required to actually have the bullying behaviour ceased.

4:59 –FWC must consider

The Fair Work Commission have indicated that they must consider or the act actually infers on to the Fair Work Commission, they must consider any final or interim outcomes of an investigation. They must consider any procedures available to the worker to resolve the grievance or dispute, and any final or interim outcomes arising from those procedures. I think we will say the Fair Work Commission push back a matter to an organisation or put that matter on hold until an investigation is completed. They may push back on a worker and say, you need to follow this process, if the risk to health and safety isn’t that great they need to place an interim order.

The Fair Work Commission have also indicated that before making an order they must speak to the state regulator to determine what they are going to do or have done with regard to that matter. The Fair Work Commission is going to be very much about seeking information and having discussions with the parties, with the principal or employer about what they are doing about the situation and also in terms of speaking to the regulator what they have done or will do. Before they consider what orders they might put in place.

Previously we thought that the Fair Work Commission may refer a matter to the regulator in the state relevant. However, now we’re hearing that the Fair Work Commission even if they don’t refer a matter to the regulator will be speaking to the regulator to find information out from them first before they move to making an order. In all cases that proceed to having an order made the Work Health Safety Regulator will be informed of the matter.

6:52 – Power to dismiss

Of course, the commission may not get to the stage where they to make an order. They may dismiss the application and they may dismiss the application if it was not made in accordance with the Fair Work Act, if it’s considered to be frivolous or vexatious or has no reasonable prospect to success. For the Fair Work Commission, success means the ability to apply a stop bullying order so that the bullying is discontinued.

I think that’s important to understand what success means to the Fair Work Commission because parties will probably want to be looking for a substantiation of bullying and that may not necessarily happen depending on the context and on whether the commission believe that they’re going to need more information in order to perhaps apply an order. Perhaps they don’t see the necessity for an order and so the application will be dismissed.

The Fair Work Commission must consider application doesn’t involve matters relating to Australia’s Defence and Security and the operations of the Australian Federal Police. If any applications do involve those matters they may dismissed them on the grounds of defence and national security.  The Fair Work Commission is able to dismiss applications very early or at any time throughout the process.

8:13 – But….

If the Fair Work Commission does not dismiss an application so the application is still standing and still being addressed, there is then a need to determine has bullying occurred or not and remember they will use the civil standard of proof here. Once bullying is substantiated and there is a risk that the behaviour will continue, the Fair Work Commission may make any order it considers appropriate. Remember not reinstatement or monetary amounts.

If the application hasn’t been dismissed but then the Fair Work Commission determine bullying hasn’t occurred. The application will be dismissed. If the Fair Work Commission is satisfied bullying has occurred but they believe the behaviour will not continue the application will be dismissed.

It is only when we get to the final stage that the application is still standing, bullying has been satisfied to have occurred, and there is a risk that the behaviour will continue that the Fair Work Commission will make an order and they can make any order they consider appropriate.

9:23 – In general:

In general the orders will be directed to prevent the worker concerned being bullied again. Understandably, an order can’t be made if the applicant no longer is exposed to the bully because either the applicant or the respondent has been dismissed or they’re being transferred or rosters have been changed, etc.. Orders can be directed at the employer or principal of the applicant, the respondent. They can be directed directly to the respondent or to co-workers as well. This could include individuals who visit the work site such as clients, members of the public, consultants, unions etc…

10:02 – The focus:

The focus will be on resolving the matter and enabling normal workplace relationships to resume promptly. The Fair Work Commission in explanatory memorandum has an overarching goal to resolve the matter promptly and enable normal working relationships to resume. It’s only where there is a prospect that these are not going to resume that they will place an order to stop the bullying.

10:27 – Types of orders

The types of orders that we can see and this list is not limited. There could be other orders that come out through conference listings that we get to see outcomes from once these applications have been made and tested. But in general we’re thinking that the orders may require a worker to stop the bullying behaviour. To comply with the employer policies, to be separated, transferred, have rosters changed, for the employer or principal to monitor the behaviour or their work participants, for training or counselling to be offered to the worker and to be taken up by the worker. For an organisation to review and improve their bullying policies and complaint handling policies or for behaviour to cease outside of work. There has been mentioned that the Fair Work Commission may find the situation where to stop the bullying they actually recommend to the employer that the respondent be dismissed.

11:24 – Breaches of an order

Once an order has been made the person to whom that order has been made is expected to carry out that order and if not, if they contravene that order there will be civil remedy provisions able to be applied that can be enforced by the federal court or the federal circuits court. A breach of an order will not constitute an offense however; it will carry a civil penalty. There is the hope that a $10,000 fine for an individual may encourage them to behave appropriately and not breach an order and the $51,000 dollar fine for a corporation to ensure that they comply with the orders and that they’re watching over their staff or the affected respondents to make sure they’re abiding by the order as well.

We hope you will join us for our next webinar looking at the costs involved in responding to an F72 application form and what sort of appeals will be available to an employer or principal if a stop bullying application is made by one of their workers.

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.

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