The FWC anti-bullying jurisdiction (section 789FC) explained

When the jurisdiction applies

Section 789FC of the Fair Work Act 2009 establishes the Fair Work Commission’s (FWC) jurisdiction to address workplace bullying. A worker may apply to the FWC for orders to stop bullying if they reasonably believe they have been bullied at work. This application triggers the FWC’s ability to intervene and prevent further instances of bullying. workplace investigation timer

The FWC’s jurisdiction is defined by the legal definition of bullying at work. This means repeated unreasonable behaviour directed towards a worker, or a group of workers, that creates a risk to health and safety. A single incident, even if serious, does not constitute bullying under this provision.

The focus of the FWC’s intervention is preventative. The jurisdiction is not designed to provide compensation for past detriment suffered as a result of bullying, but rather to stop the bullying from continuing or recurring.

Who is a 'worker' for these purposes

The term 'worker' for the purposes of the FWC’s anti-bullying jurisdiction (section 789FC) is defined by reference to the meaning given to it in the Work Health and Safety Act. This broad definition encompasses a range of individuals, including employees, contractors, subcontractors, outworkers, apprentices, trainees, students gaining work experience, and volunteers in defined cases.

For section 789FC to apply, the worker must be working within a ‘constitutionally-covered business’. This requirement is separate from the definition of ‘worker’ itself.

Applications to the FWC can be lodged naming the alleged bully, the employer, or both. This reflects the potential for both individual and employer responsibility in addressing bullying behaviour.

What is and is not bullying

Bullying under the Fair Work Act is defined by its persistent nature. The legislation requires a pattern of behaviour, not a one-off event, to be considered bullying. A single incident of unreasonable conduct, even if distressing to a worker, does not constitute bullying.

Activities such as performance management, restructure decisions, work allocation, and disciplinary processes are not considered bullying, provided they are carried out in a reasonable manner. This explicitly excludes reasonable management action.

The key distinction lies in the ongoing and unreasonable nature of the behaviour. Even if a worker finds these management actions upsetting, they are not automatically classified as bullying if conducted appropriately.

Orders the FWC can make

The Fair Work Commission (FWC) has the power to make orders to prevent a worker from being bullied at work. These orders are determined by the FWC based on what it considers appropriate for the specific circumstances, with the exception of orders requiring payment of pecuniary amounts.

Orders issued under section 789FC can take various forms, designed to address the bullying behaviour and protect the worker. Examples of orders include requirements to adhere to anti-bullying policies, participate in training, modify reporting structures, physically separate the worker from the alleged bully, or implement specific processes for raising and resolving workplace concerns.

Failure to comply with an order made by the FWC in relation to bullying can result in civil penalties.