1
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
CF
(AB2015/406)
NW
(AB2015/409)
And
Company A and ED
COMMISSIONER HAMPTON MELBOURNE, 5 AUGUST 2015
Applications for an FWC order to stop bullying – same workplace and course of alleged
conduct – matters heard together – determinative conference conducted – concession made
that bullying conduct took place and future risk present – jurisdiction to make orders found –
orders developed in conjunction with, and with eventual consent of, all parties – parties de-
identified in decision to support consent position – orders made.
1. Background
[1] On 30 July 2015, during the course of a determinative conference, the Commission
made stop bullying orders1 arising from two related applications. This decision outlines the
circumstances of those applications, the basis upon which the orders were made, and the
process leading to that point.
[2] For reasons which will be outlined shortly, this decision, and the public version of the
orders made by the Commission, do not identify the parties.
[3] Ms C.F and Ms N.W. (the applicants) each made an application for an order to stop
bullying under s.789FD of the Fair Work Act 2009 (the FW Act). The applicants were, and
are, employees of a relatively small real estate business. The applications allege bullying
conduct by Ms E.D., who is a Property Manager engaged by the employer, and more recently,
employed by a related company. Both of these applications concerned alleged conduct in the
same workplace and, at least in general terms, the same unreasonable behaviour.
[2015] FWC 5272
DECISION
AUSTRALIA FairWork Commission
[2015] FWC 5272
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[4] Section 789FC of the FW Act provides as follows:
“789FC Application for an FWC order to stop bullying
(1) A worker who reasonably believes that he or she has been bullied at work may
apply to the FWC for an order under section 789FF.
(2) For the purposes of this Part, worker has the same meaning as in the Work
Health and Safety Act 2011, but does not include a member of the Defence
Force.
Note: Broadly, for the purposes of the Work Health and Safety Act 2011, a
worker is an individual who performs work in any capacity, including as
an employee, a contractor, a subcontractor, an outworker, an apprentice,
a trainee, a student gaining work experience or a volunteer.
(3) The application must be accompanied by any fee prescribed by the regulations.
(4) The regulations may prescribe:
(a) a fee for making an application to the FWC under this section; and
(b) a method for indexing the fee; and
(c) the circumstances in which all or part of the fee may be waived or
refunded.”
[5] There was no contest that the applicants reasonably believed that they have been
bullied at work and it was clear that each were workers as defined. The applications also met
the other requirements of s.789FC.
[6] The applications were lodged with the Commission on 18 June and 23 June 2015
respectively and following a process, which provided an opportunity for all parties to confirm
their respective positions, a preliminary conference was conducted via telephone on 10 July
2015.
[7] The applicants alleged various conduct by ED towards them in the workplace and
without outlining the full extent of those allegations, the behaviour was said to include:
Belittling conduct;
Swearing, yelling and use of otherwise inappropriate language;
Daily interfering and undermining the applicants’ work;
Physical intimidation and “slamming” of objects on the applicants’ desks,
Attempts to incite the applicants to victimise other staff members; and
Threats of violence.
[8] The employer contended that at least one of the applicants was provided the
opportunity to put their allegations in writing, but failed to do so, and that ED had, in effect,
been moved to another location to ensure no work related contact. The employer further stated
that this change was providing a safe work environment. In terms of the substance of the
[2015] FWC 5272
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allegations, the employer contended that they were either denied by ED or significantly
qualified, and that the applicants themselves had acted unreasonably in certain respects.
[9] As a result of the preliminary conference, I determined that the applications should be
heard together and be subject to a determinative conference.2
[10] Amongst other considerations leading to that approach was the seriousness of the
allegations, the indication that neither of the applicants was able to safely return to the
workplace until the issues had been addressed, and the impact of the unresolved applications
upon the relatively small business of the employer. In addition, the parties had earlier
attempted to resolve the matters at the workplace without success.
[11] Prior to the point where these applications were lodged, the applicants raised some
concerns about the conduct of ED with the employer. These matters were the subject of an
informal investigation and an attempted workplace mediation. Subsequently, ED, with the
support of the employer, resigned her employment with the employer but took up an
equivalent position with the related company. The related company operates from a different
location than the workplace concerned with these applications. However, there was, in the
normal course, potential for interaction between the two businesses and their employees, and
ED in the lead up to the Commission’s proceedings, had also been “seconded” back to the
employer to assist its business on a short-term basis.
[12] I note that at the time of the preliminary conference, both CF and NW were not
attending the workplace and had lodged claims for workers compensation. Each was also
undergoing medical treatment.
[13] The determinative conference was conducted on 30 July 2015. In the lead up to the
conference, the applicants, the employer and ED provided written outlines of their respective
positions, outlines of the alleged facts (some in the form of witness statements) and relevant
documents.
[14] The two applicants attended the conference with a support person and the employer
was represented by Mr Maher of HR Legal, with permission.3 ED also participated in the
proceedings. In addition, most of the witnesses who were to give evidence were also in
attendance.
[15] Ultimately, the jurisdiction to make orders was conceded by the employer and this
avoided the need for the parties to give evidence on the disputed elements. Further, orders
were eventually made by the Commission with the support of all relevant parties.
2. The finding that there was conduct constitute bullying behaviour
under the Act
[16] Section 789FD of the FW Act provides as follows:
“789FD When is a worker bullied at work?
(1) A worker is bullied at work if:
[2015] FWC 5272
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(a) while the worker is at work in a constitutionally-covered business:
(i) an individual; or
(ii) a group of individuals;
repeatedly behaves unreasonably towards the worker, or a group of workers of
which the worker is a member; and
(b) that behaviour creates a risk to health and safety.
(2) To avoid doubt, subsection (1) does not apply to reasonable management action
carried out in a reasonable manner.
(3) If a person conducts a business or undertaking (within the meaning of the Work
Health and Safety Act 2011) and either:
(a) the person is:
(i) a constitutional corporation; or
(ii) the Commonwealth; or
(iii) a Commonwealth authority; or
(iv) a body corporate incorporated in a Territory; or
(b) the business or undertaking is conducted principally in a Territory or
Commonwealth place;
then the business or undertaking is a constitutionally-covered business.”
[17] The employer is a trading corporation and there was no contest that it was conducting
a business or undertaking within the meaning of the Work Health and Safety Act 2011 (WHS
Act.
[18] The general nature of the alleged conduct has been set out earlier in this decision. I
have also noted the contrary allegations made by the other parties. Ultimately, it was not
necessary to make detailed findings on these matters.
[19] The employer4 conceded that a finding that bullying conduct had taken place in the
workplace could be made. That is, there was sufficient apparent conduct, based upon the
undisputed elements of the evidence of all parties, that would indicate that repeated
unreasonable behaviour towards the applicants, or a group of workers of which the applicants
are a member, had occurred. It was also acknowledged that such behaviour may have created
a risk to health and safety. In making the concession, the employer noted the contrary
allegations in relation to the applicants’ behaviours, but, correctly in my view, acknowledged
that these would not of themselves undermine findings about the existence of unreasonable
behaviour towards the applicants.
[20] In my view, the concession was appropriate. The conduct revealed in the evidence of
the applicants and ED was indicative of a workplace culture where unprofessional and
unreasonable conduct and interactions had taken place and that such had created a risk to the
health and safety of a number of the workers involved.
[21] The applicants and ED accepted that the applications could be determined on the basis
of the concession without the need for findings on each of the disputed elements to be made.
[22] In all of the circumstances, I found that the applicant workers had been bullied at work
within the meaning of s.789FD of the FW Act.
[2015] FWC 5272
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3. The capacity to make orders and the terms of the orders made
[23] Section 789FF of the FW Act provides as follows:
“789FF FWC may make orders to stop bullying
(1) If:
(a) a worker has made an application under section 789FC; and
(b) the FWC is satisfied that:
(i) the worker has been bullied at work by an individual or a group of
individuals; and
(ii) there is a risk that the worker will continue to be bullied at work by
the individual or group;
then the FWC may make any order it considers appropriate (other than an order
requiring payment of a pecuniary amount) to prevent the worker from being
bullied at work by the individual or group.
(2) In considering the terms of an order, the FWC must take into account:
(a) if the FWC is aware of any final or interim outcomes arising out of an
investigation into the matter that is being, or has been, undertaken by
another person or body—those outcomes; and
(b) if the FWC is aware of any procedure available to the worker to resolve
grievances or disputes—that procedure; and
(c) if the FWC is aware of any final or interim outcomes arising out of any
procedure available to the worker to resolve grievances or disputes—
those outcomes; and
(d) any matters that the FWC considers relevant.”
[24] For reasons outlined above, I was satisfied that relevant bullying conduct had taken
place. Further, I was satisfied that there was a risk that the applicant workers would continue
to be bullied at work by the individual concerned (ED). That is, although ED is now
employed by the related business and works from a different work location, there is some
common ownership of the businesses and ED was already seconded back to assist in the
period surrounding these proceedings.
[25] The prospect that the applicants and ED would, in the absence of the orders, have
some future work related interactions was real. Further, without measures being implemented
to set and enforce appropriate standards of behaviour in the workplace there was a risk of
further relevant unreasonable conduct.
[26] The above findings meant that the Commission had the necessary jurisdiction to make
the orders.
[27] The considerations to be taken into account in making orders in the anti-bullying
jurisdiction are set out in s.789FF(2) of the FW Act. In this case, at the time of the
[2015] FWC 5272
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applications being made, there was no formal anti-bullying or grievance resolution procedure
operating within the workplace.
[28] The investigation made by the employer was non-conclusive and no other
investigations have been conducted.
[29] In light of the jurisdictional concession and the finding made by the Commission, I
explored with all parties the nature of the orders that might be made. In the end result, the
orders that have been made had the consent of all parties and this is a relevant matter to be
taken into account consistent with s.789FF(2)(d) of the FW Act.
[30] The orders apply to, and require actions by, the two applicants, the employer and ED.
Each of these are parties to the matters and the Commission is empowered by s.789FF(1) of
the FW Act to make orders with that coverage, provided the orders are directed at preventing
the applicant workers from being bullied at work.
[31] Without detracting from the details of the orders made by the Commission, they
contemplate two broad elements. Firstly, those dealing with specific conduct. This involves a
requirement that the applicants and ED do not approach each other and that they not attend
the (other) business premises. In some cases, an order that parties avoid each other may not be
appropriate as it may have practical difficulties and may not of itself deal with the
fundamental unreasonable conduct. In this case, the (now) different employers and work
locations meant that avoidance was a practical preventative solution and this was the outcome
strongly supported by all parties, including the employer.
[32] I note that the orders in that regard were also crafted to recognise that ED would
continue her secondment, but only in the absence of one (or both) of the applicants being fit to
resume work. I also note that the employer will be responsible for establishing appropriate
return to work arrangements, in conjunction with the applicants and relevant medical
advisors, consequent upon the applicants being cleared to resume work.
[33] Secondly, a number of initiatives have been ordered that go to the broader conduct
within, and culture of, the workplace. These include the establishment and implementation of
appropriate anti-bullying policies, procedures and training, which will include confirming
appropriate future conduct and behaviour. Further, reporting arrangements will be clarified.
[34] In my view, the orders, particularly those dealing future workplace conduct and
providing appropriate procedures to make and deal with complaints, are genuine preventative
orders in the context of this workplace and are consistent with the purpose of such orders as
contemplated by the Act.
[35] There are confidentiality provisions in the orders however these acknowledge the need
to disclose the full terms of the orders for the purposes of taking advice, informing the return
to work process, and for enforcement purposes.
[36] The orders operated from the date of issue and will remain in force for a period of
24 months. In that regard it should be noted that some of the terms of the orders are limited in
practice to certain defined circumstances.
[2015] FWC 5272
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4. The de-identification of the parties
[37] The application was subject to a determinative conference, which was conducted in
private as contemplated by s.592(3) of the FW Act. All proceedings conducted to that point
were also undertaken in private.
[38] I have issued the orders and this decision without identifying the parties involved. I
have done so in the case for the following reasons:
All parties supported that outcome;
The capacity for the parties to not be identified was an important element in the
giving of the jurisdictional concession, and the decision of the applicants and ED to
accept that admission without seeking findings on all of the respective and
competing allegations; and
The determination of this matter on the basis of the consent orders made was
conducive to the resumption and continuation of on-going safe and productive
working relationships between the applicants and the employer.
[39] In these circumstances, I considered that these factors outweighed the considerations
that might otherwise lead to the full disclosure of the circumstances of the parties.
[40] The complete version of the orders has been provided to each of the relevant parties.
5. Conclusion
[41] Whilst the establishment of an early determinative conference will not be appropriate
in all matters within the Commission’s anti-bullying jurisdiction, in this case, that approach
facilitated the expeditious making of appropriate findings, and ultimately, orders that had the
concurrence of all parties.
[42] The contribution of the parties, and their support advisors and representatives to that
final outcome, bodes well for the re-establishment of safe and constructive working
relationships upon the applicants’ forthcoming return to the workplace.
[43] The orders made determined the applications and they have been closed.
COMMISSIONER
Appearances:
CF and NW, on their own behalf with a support person.
THE FAIR WOR C MMISSION ADS THE SEAL
[2015] FWC 5272
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A Maher with A Bogaty of HR Legal, both with permission, for the employer.
ED on her own behalf.
Hearing details:
Determinative conference
2015
Melbourne
30 July.
Printed by authority of the Commonwealth Government Printer
Price code C, PR570076
1 PR569997.
2 A determinative conference is a form of proceedings designed to enable the Commission to determine the facts and make
the necessary evidentiary and other findings. Such a conference is often conducted on a more inquisitorial basis than a
traditional hearing but does involve parties giving evidence and having that evidence tested where there are disputed facts.
3 Permission was given under s.597 of the FW Act on a limited basis in order to explore the employer’s position and an early
indication that a concession on merit was being considered.
4 The employer consulted with ED before making the jurisdictional concession.
