Applying for a stop-bullying order at the Fair Work Commission
Part 6-4B of the Fair Work Act allows a worker who reasonably believes they have been bullied at work to apply to the Fair Work Commission for an order to stop the bullying. Bullying at work means repeated unreasonable behaviour directed towards the worker that creates a risk to health and safety. The FWC can make any order it considers appropriate to prevent the bullying from continuing, but cannot order compensation.
This is an 8-step workflow for applying for a stop-bullying order under Part 6-4B of the Fair Work Act 2009 (Cth). The FWC can make orders to prevent a worker from being bullied at work, but cannot award compensation.
Before you start
- The applicant is a worker at a constitutionally-covered business
- Evidence of repeated unreasonable behaviour directed at the worker
- The bullying behaviour creates a risk to health and safety
- The bullying is ongoing or there is a risk it will continue (the FWC cannot address past bullying that has stopped)
The workflow
Confirm jurisdictional eligibility
Verify that the applicant is a "worker" within the meaning of s 789FC and that the employer is a "constitutionally-covered business" under s 789FD. This includes national system employers, Commonwealth public sector, and certain other entities. State public sector employees may be excluded.
Document the bullying behaviour
Prepare a chronological record of each incident of bullying behaviour: the date, time, location, what was said or done, who was present, and the impact on the worker. The behaviour must be repeated (more than one occasion) and unreasonable.
Establish the risk to health and safety
Gather evidence that the bullying creates a risk to health and safety. This may include medical reports, psychologist reports, workers compensation claims, or evidence of stress-related illness. The risk must be ongoing.
Distinguish bullying from reasonable management action
Assess whether any of the behaviour could be characterised as reasonable management action carried out in a reasonable manner under s 789FD(2). Performance management, rostering decisions, and disciplinary action conducted reasonably are excluded from the definition of bullying.
Consider internal complaint processes first
Check whether the employer has an internal grievance or bullying complaint process and whether the worker has used it. While not a prerequisite, the FWC will consider what steps have been taken internally. Document any inadequate response by the employer.
Complete and file the Form F72 application
File the Application for an FWC Order to Stop Bullying (Form F72) with the Fair Work Commission. The application must identify the person or persons alleged to be bullying the worker, describe the behaviour, and state the orders sought.
Prepare evidence for the FWC hearing
Prepare witness statements, medical evidence, copies of relevant emails or messages, and any workplace investigation reports. Organise the evidence chronologically and cross-referenced to each incident described in the application.
Attend the FWC conference or hearing
Attend the FWC matter. The FWC will typically hold an initial conference to explore resolution. If unresolved, the matter proceeds to a hearing where the FWC can make orders including requiring the employer to implement a bullying prevention policy, requiring the bully to stop specific behaviour, or restructuring reporting lines.
What you will have at the end
An FWC order directing the individual or employer to stop the bullying behaviour. Orders may include directions about workplace behaviour, changes to reporting structures, implementation of anti-bullying policies, or monitoring requirements. The FWC cannot award compensation through this process.
Common issues
- Confusing workplace bullying with a single incident of unreasonable behaviour — the conduct must be repeated
- Not distinguishing bullying from reasonable management action carried out in a reasonable manner
- Applying after the bullying has stopped and there is no ongoing risk, which may make the application incompetent
- Expecting the FWC to award compensation — stop-bullying orders cannot include compensation
- Failing to gather medical evidence establishing the risk to health and safety
Run this workflow on a real matter
Quillio helps you document bullying incidents, distinguish them from reasonable management action, and prepare the FWC application. It surfaces relevant FWC decisions on what constitutes repeated unreasonable behaviour. See /practice-areas/employment-lawyers or start a free trial.
This workflow is a general guide. If the worker also has claims for adverse action, workers compensation, or discrimination, those should be assessed separately as they involve different jurisdictions and remedies.
Try this workflow with Quillio.
Quillio can run this workflow on a real matter, with citations to current AU authority on every step. The free trial requires no credit card.
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