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Anti-bullying

Snapshot data of Anti-bullying

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

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

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

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

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

If a finding is made, a Member may make any order they consider appropriate to prevent the behaviours continuing. However, the Commission cannot order reinstatement, compensation or a monetary amount.

Performance overview

In 2018–19:

  • 751 applications for an order to stop bullying were lodged
  • 734 applications were finalised, of which 10 per cent (74) were resolved by the Commission issuing a decision or order.

The website received 183,279 page views regarding anti-bullying, 103,818 page views or downloads of the anti-bullying benchbook, 21,005 views of the anti-bullying virtual tour, and 59,198 page views of the online eligibility quiz for anti-bullying applications. Staff answered 5,550 telephone enquiries concerning anti-bullying.

Performance discussion

The number of applications for an order to stop bullying has been fairly consistent since the jurisdiction commenced on 1 January 2014, with a 4 per cent increase in applications in 2018–19, as shown in Table 12.

Table 12: Anti-bullying – applications lodged and finalised

No. lodged

No. finalised

Matter type

2018–19

2017–18

2016–17

2015–16

2018–19

2017–18

2016–17

2015–16

FWA s.789FC – Anti-bullying

751

721

722

734

734

700

695

705

FWA = Fair Work Act

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

A total of 734 applications for an order to stop bullying were finalised in 2018–19. Table 13 sets out how matters were finalised during the year. Consistent with results in previous years, a large majority (90 per cent) of applications were finalised without a decision or order. This is a product of the relatively high rates of settlement and withdrawal of applications, including where appropriate arrangements are made in the workplace without a formal agreed resolution.

Table 13: Anti-bullying – finalisation of matters

Outcome

2018–19

2017–18

2016–17

2015–16

Applications withdrawn early in case management process1

232

183

171

237

Applications withdrawn before proceedings2

87

97

125

115

Applications resolved during the course of proceedings3

212

234

188

191

Matters withdrawn after a conference or hearing and before decision

129

133

151

110

Applications finalised by decision

74

53

60

52

Total

734

700

695

705

1 Applications withdrawn before substantive proceedings – while the matter is with the case management team or practice leader.

2 Includes matters that are withdrawn before a proceeding being listed; before a listed conference, hearing, mention or mediation before a Commission Member is conducted; and before a listed mediation by a staff member is conducted. This also includes matters where an applicant considers the response provided by the other parties to satisfactorily deal with the application.

3 Includes matters that are resolved as a result of a listed conference, hearing, mention or mediation before a Commission Member or listed mediation by a staff member.

Table D12: Anti-bullying – applications finalised by decision in Appendix D provides a breakdown of how the Commission resolved the 74 applications that were finalised by decision in 2018–19. An order to stop bullying was made in two substantive applications, which represents less than 1 per cent of the finalised cases, a decrease compared with results in previous years.

Timeliness

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

In 2018–19, the Commission maintained its high level of performance, with a median of one day taken to begin dealing with an application, as shown in Table 14. The Commission started dealing with every application within 13 days in 2018–19, an increase of eight days from 2017–18. This is a one‑off increase arising from a small backlog of applications while we were migrating all cases between case management systems.

Table 14: Anti bullying – timeliness

Days elapsed

In 50% of matters

In 100% of matters

Process

2018–19

2017–18

2016–17

2015–16

2018–19

2017–18

2016–17

2015–16

FWA s.789FC – Anti‑bullying – time to start dealing with an application

1

1

1

1

13

5

6

5

FWA = Fair Work Act

Significant decision – is a volunteer a ‘worker’?

Under the Fair Work Act, an application for an order to stop bullying can only be made by a worker. The Commission’s original decision was that a mental health clubhouse member could not apply for orders to stop bullying because he was participating in a government‑funded program to improve his wellbeing and was therefore not a worker.

He claimed that he needed orders to stop bullying under the Fair Work Act to ensure his safe return to his voluntary activities at the club.

A Full Bench quashed the original decision, noting that the clubhouse member performed his work ‘side by side with staff’ and that the day program was intentionally understaffed so that it could not operate without the assistance and involvement of the membership.

As the Full Bench decided that the clubhouse member was a worker, he was then able to make an application for orders to stop bullying.

You can read the decision in Bibawi v Stepping Stone Clubhouse Inc T/A Stepping Stone & Others at [2019] FWCFB 1314.