In this In Brief, we consider recent developments in the anti-bullying jurisdiction of the Fair Work Commission (FWC) under Part 6-4B of the Fair Work Act 2009 (Cth) (FW Act).
The FWC’s Annual Report 2013-14 indicates that while the numbers of bullying claims are still much lower than expected overall, they have been gradually increasing month-on-month.
In this In Brief, we provide a snapshot of the FWC data, along with a summary of recent decisions on:
In the first six months of operation of Part 6-4B (1 January-30 June 2014), the FWC fielded over 100,000 website enquiries and 3,500 telephone enquiries about the new anti-bullying jurisdiction.
343 applications for anti-bullying orders were lodged during this period – these applications were dealt with as follows:
In separate decisions, the FWC has again confirmed that:
Under section 789FD(1) of the FW Act, a worker is “bullied at work” when:
However, “reasonable management action carried out in a reasonable manner” is not considered bullying (section 789FD(2)).
In Applicant v Respondent  FWC 6285 (31 October 2014), the FWC maintained the broad approach to the concept of “reasonable management action” adopted in earlier cases. In this case, the applicant alleged there had been repeated bullying by his manager in a federal government department. The allegations included that the manager had told the applicant to “go back where I came from”; and had engaged in intimidation, put-downs and patronising of the applicant, as well as fabrication of non-existent performance issues. As a result, the applicant’s health had been adversely affected.
However, the FWC accepted the department’s position that it had engaged in legitimate performance management of the applicant. The applicant’s manager had been addressing a number of concerns regarding the applicant’s performance, and these were “not motivated by an intention to bully him”. The applicant’s “perception of a malevolent intention” on the part of the manager, while honestly held, was without justification according to the FWC. As the department had acted on the basis of “an ordinary exercise of management prerogative”, there was no bullying and the application was dismissed.
The FWC may issue an order to stop bullying under section 789FF(1) of the FW Act, where it is satisfied that a worker has been bullied at work and there is a risk that the bullying will continue. Two recent examples illustrate the breadth of the orders that the FWC can make under this provision.
Applicant v Respondent (PR555329)
After a conference between the parties, the FWC made an order (by consent) which restricted the contact between the applicant and the respondent. The order was very detailed, requiring the employee who was the subject of the application to:
Applicant v Company A Pty Ltd; Company B Pty Ltd; and Third Respondent
The FWC made an order (again, by consent) which restricted the conduct of two brothers working in companies related to their family trust. Under the order, the Applicant and Third Respondent must be civil to one another and avoid making abusive or offensive statements; and may only contact each other via email between 9.00 am and 5.00 pm, with a maximum of three emails per day (apart from emergencies). All emails are required to be about the business of the trustee companies. The order operates for a three-month trial period.
Under section 593(3)(c) of the FW Act, the Commission may issue an order to prohibit or restrict the publication of the names and addresses of persons appearing at a hearing in a matter, where satisfied that it is desirable to do so because of the confidential nature of any evidence or for any other reason.
Two decisions over the last few months demonstrate that the FWC will only allow de-identification of parties pursuant to section 593(3)(c) in limited circumstances.
Justin Corfield  FWC 4887 (21 July 2014)
The FWC denied the Respondents’ request that the parties in the matter be de-identified. The Respondents made the application on the basis that publication of the names of the parties:
The Commission determined that:
The FWC also indicated that despite its rejection of the Respondents’ application, the identity of the Respondents would not be disclosed until the hearing in accordance with the tribunal’s practice of only naming the applicant employee in its public listings. Further, the decision “should not be seen as giving the Applicant permission to publicly identify the Respondents to his application”.
Bowker and Others v DP World Melbourne Limited T/A DP World; Maritime Union of Australia, The-Victorian Branch and Others  FWC 7381 (21 October 2014)
Following the decision in Justin Corfield  FWC 4887, the FWC refused an application by one of the Respondents (the MUA) to de-identify the parties. The Commission determined that the embarrassment and risk of prejudice claimed by the MUA did not outweigh the desirability for open justice in dealing with the applicants’ bullying claims.
Consistently, again, with its approach in previous decisions, the FWC has granted legal representation in an application for orders under Part 6-4B. Representation in bullying cases is subject to the usual rules set out in section 596 of the FW Act.
In Applicant  FWC 7378 (17 October 2014), the Respondents (being the employer and six respondent employees) sought permission for legal representation on the basis that this would assist in having the matter dealt with more efficiently given the complex nature of the proceedings. Eight witnesses were to be called, and a large volume of material submitted, by the parties.
The Commission considered that:
This was also the basis for the granting of a request for legal representation in H v Centre and Others  FWC 6128 (4 September 2014), where the FWC rejected the applicant’s submission that the anti-bullying jurisdiction is based on parties being self-represented.
One of the cases discussed above – Bowker and Others v DP World Melbourne Limited T/A DP World; Maritime Union of Australia, The-Victorian Branch and Others – is shaping up as a test case on other aspects of the provisions in Part 6-4B.
Deputy President Gostencnik has referred the case to a Full Bench (comprising himself, Justice Ross and Commissioner Hampton), which will consider:
The parameters of the FW Act bullying provisions continue to evolve through decisions of the FWC.
The total number of bullying claims in the first six months was around 20% of the number anticipated by the FWC before Part 6-4B commenced operation.
Despite this, employers need to have effective systems in place to prevent bullying issues from arising in the workplace and to deal with bullying allegations/claims when they surface.
The content of this publication is for reference purposes only. It is current at the date of publication. This content does not constitute legal advice and should not be relied upon as such. Legal advice about your specific circumstances should always be obtained before taking any action based on this publication.