Bullying orders: how do they work?

Q&A

Bullying orders: how do they work?

What type of bullying orders can be issued by the Fair Work Commission under the recent changes to the FWAct? What other options do employees have?

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What type of bullying orders can be issued by the Fair Work Commission under the recent changes to the FWAct? What other options do employees have?
 
These questions were sent in to our Ask an Expert service. 
 
Q We recently read an article on WorkplaceInfo regarding the first bullying order issued by the Fair Work Commission (FWC). Because this complaint system is new, our company management has raised a couple of questions on this issue. What type of orders can be issued by the FWC and what other avenues can an employee pursue if alleged bullying in the workplace occurs?
 
A The FWC may make any order it considers appropriate other than the payment of compensation, reinstatement or penalties. Orders may include:
    • That an individual stop certain specified behaviour;
    • That persons monitor certain behaviour;
    • That persons provide relevant information, support or training; 
    • To develop or amend current policies and procedures; and/or
    • That a business review its relevant management systems.
Orders can be made against individuals, groups or the employer. 
 
Breach of an order
 
Contravening a FWC stop bullying order is a contravention of the civil remedy provision of the FWAct, which can be subject to penalties of up to $10,200 for an individual or $51,000 for a body corporate. The FWC can also send a report to a WHS regulator, such as a WorkCover or a WorkSafe regulator.
 
It should also be noted that an employee can pursue other remedies with respect to a bullying allegation.
 
Multiple actions
 
An employee seeking a remedy from the FWC with respect to bullying can concurrently seek other remedies for bullying. These may include:
    • Raising their dispute with the relevant Commonwealth, State or territory work health and safety regulator;
    • Alleging breach of the employment contract;
    • Making a workers compensation claim;
    • Initiating adverse action (general protections) proceedings before the FWC, and consequently Federal Circuit Court and Federal Court; and/or
    • Pursuing discrimination law proceedings before a discrimination tribunal.
This means an employee can pursue multiple proceedings in relation to the same bullying allegation.
 
Recent FWC order
 
In determining what details may be contained in a stop bullying order, as an example, the FWC made the following orders in the first matter determined on this issue
 
The alleged bully
 
Orders to be followed by the employee, the subject of the application (i.e., the alleged bully) were that the employee shall:
    • Complete any activities at the employer’s premises before 8am;
    • Have no contact with the applicant alone;
    • Make no comment about the applicant’s clothes or appearance;
    • Not send any emails or texts to the applicant except in emergency circumstances; and
    • Not raise any work issues without notifying the chief operating officer of the respondent or his subordinate beforehand. 
The applicant
 
The applicant employee was ordered to not arrive at work before 8.15am.
 

 
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