Stop bullying orders: section 789FC applications to the Fair Work Commission

The Part 6-4B jurisdiction

Part 6-4B of the Fair Work Act 2009 provides the Fair Work Commission with jurisdiction to hear applications for stop bullying orders. This jurisdiction was inserted by the Fair Work Amendment Act 2013, and commenced on 1 January 2014. It enables a worker who reasonably believes they have been bullied at work to seek an order from the Commission to stop the bullying. workplace investigation timer

The scope of Part 6-4B was expanded following the Respect@Work reforms. From 6 March 2023, sexual harassment became a separate jurisdiction within Part 6-4B, allowing workers experiencing sexual harassment to apply for a stop order.

Applications under Part 6-4B are lodged with the Fair Work Commission and are typically dealt with through a conference or a formal hearing process.

Section 789FD definition of bullying

Section 789FD(1) defines bullying in the context of a section 789FC application as where another individual or group repeatedly behaves unreasonably towards a worker, and that behaviour creates a risk to health and safety. This definition requires a pattern of conduct, as a single incident does not constitute bullying, although it may still be other contravening conduct.

The behaviour must be assessed as 'unreasonable' from the perspective of a reasonable person. This provides an objective test for determining whether the conduct meets the threshold for bullying.

Section 789FD(2) expressly excludes 'reasonable management action carried out in a reasonable manner' from the definition of bullying. This ensures that legitimate workplace actions, even if unwelcome, are not inappropriately captured by the bullying definition.

Section 789FF threshold for orders

The Fair Work Commission can only make an order under section 789FF if specific conditions are met. These conditions are that an application has been made under section 789FC, the worker has experienced bullying at work, and there is a risk the worker will continue to be bullied at work.

The third condition, concerning the risk of future bullying, is a key consideration. It is rarely satisfied if the applicant is no longer employed at the workplace, such as in cases of dismissal or resignation, and orders are typically not made in those circumstances.

The Commission’s orders under section 789FF do not include payment of a pecuniary amount. Instead, common orders focus on practical measures like directions regarding communication, separation of work areas, training, and review of workplace policies.

Process and enforcement

The Fair Work Commission is required to begin processing a section 789FC application within 14 days of receipt. The initial stages of the process often involve conciliation conferences, which aim to facilitate a resolution between the parties before a formal hearing is scheduled.

Breaching a stop-bullying order carries consequences. Enforcement occurs through the Federal Court or Federal Circuit and Family Court, where civil penalties may apply.

Importantly, workers are not restricted to pursuing a stop-bullying order through the Commission. They can also simultaneously lodge a state-based Work Health and Safety complaint or pursue a workers compensation claim related to the bullying.