27 Mar 2014

As outlined in our previous article in HHG E-Check, since January 2014, a worker may apply to the Fair Work Commission (the Commission) for an order to stop bullying at work under the Fair Work Act 2009 (the Fair Work Act).  


The powers the Commission have been given by the Commonwealth Government acknowledge that bullying in the workplace is a health and safety issue, and that the nature of bullying requires there to be an independent body to whom workers can appeal for intervention.


Although there have been relatively few applications filed, and far less than some had predicted, it is only a matter of time before the new regime takes hold in the workforce as an avenue of redress. It remains to be seen whether it will serve the intended purpose of making workplaces safer, or whether it will in the main become an additional regulatory burden on business – especially small business – that fails to improve workplace effectiveness, efficiency and health. Do you have an understanding of the new laws and policies or procedures that are in line with them?

What is bullying at work?

Bullying is defined in the Fair Work Act as occurring when:


· a person or a group of people repeatedly behaves unreasonably towards a worker or a group of workers at work , and


· the behaviour creates a risk to health and safety.




Bullying can include the following types of behaviour:




·         aggressive or intimidating conduct


·         belittling or humiliating comments


·         spreading malicious rumours


·         teasing, practical jokes or ‘initiation ceremonies’


·         exclusion from work-related events


·         unreasonable work expectations, including too much or too little work, or work below or beyond a worker’s skill level


·         displaying offensive material


·         pressure to behave in an inappropriate manner.


·         Unreasonable management action carried out in an unreasonable manner




The unreasonable behaviours must be repeated and therefore likely to continue in order for the Commission to intervene.




Bullying does not include reasonable management action carried out in a reasonable manner. 




The Fair Work Commission provides a best practice guide for managing underperformance that if followed should enable businesses to avoid claims of bullying behaviour due to an unreasonable performance management process.




Who is a worker?


An individual who performs work in any capacity, including as an employee, a contractor, a subcontractor, an outworker, an apprentice, a trainee, a student gaining work experience or a volunteer.


What businesses are affected?


Workers in any constitutional corporation (including Pty Ltd companies) and Commonwealth entities are entitled to apply to the Commission for a ‘stop bullying’ order. Unsurprisingly, the Defence Force and Australian Secret Intelligence Service are excepted.


State Government and Local Government workers are not able to access the Fair Work Commission and must use State based industrial relations processes and associated commissions or tribunals. These alternative processes are not considered by this article.


Fair Work’s Anti-Bullying Process



A Worker completes an application for a stop bullying order and pays a $65 filing fee.




As the process is essentially concerned with mitigating risks to health and safety the Commission is required to deal with applications promptly.  Within 14 days the Commission must decide to conduct either an (informal mediation) conference or a formal hearing.  If necessary an investigation could also be launched.




If the Commission is satisfied that the worker has been bullied, and is likely to be continued to be bullied then it can issue a “Stop Bullying Order” on any terms it considers appropriate.  This order may be directed at an individual, group of individuals or the business entity itself.




Importantly the Commission does not have the power to order compensation or impose fines.


Enforcing a “Stop Bullying Order”


If the terms of anti-bullying order issued by the Commission are breached or not complied with then the complaint may be escalated to the Courts for further intervention. 




Interestingly not only the victim of the bullying has standing to apply to the Courts, the application can also be made by an industrial association (union) or a Fair Work Commission Inspector.  The action can be brought in the State Magistrates Courts, Federal Circuit Court and ultimately on appeal to the Federal Court.




If contravention of the Commission’s order is established individuals can be fined up to $10,200 and Corporations $51,000. The fines can be ordered to paid to the Commonwealth and/or an individual affected.  The Court may also order compensation for any loss suffered by an individual as a result of the Commission’s order being breached, grant an injunction to remedy the breach or order re-instatement if the person affected is no longer a worker.



This is general information only, and does not constitute specific legal advice. Murray Thornhill is the Director at HHG Legal Group with the Litigation/Commercial Law team. Nicole Young is a Criminal Solicitor with the Litigation/Commercial Law team at HHG Legal Group. If you would like further details in relation to this information, please contact Nicole on 9322 1966.

100 years of Supporting West Australians

"My family law experience with Mary Roubos has restored my faith in solicitors in general. She not only demonstrated her legal expertise and flair, but also showed a compassionate and understanding nature during the lengthy process. I felt that Mary went above and beyond her obligations as my solicitor, and really listened to me. I would highly recommend Mary and her assistant Debra Wilson, who also demonstrated professionalism and excellence on all levels."

Renee Frangiosa

"Always fast and thorough service. Thank you"

Sitka Pil

"I found Ben most helpful and always prompt to let me know where things were at. Will definately use Ben again and will recommend to others."

Gerrit and Mary Van Bralal

"We wish to express our thanks for your help in attending to our mother/ wife's will - Mrs Grace Margaret Vessey. Aimee was extremely helpful and easy to deal with. We are greatful for your help with our affairs."

Ms Rosalyn Norman, Mr Stephen Vessey

"Thank you ever so much for all your hard work on my case Nicole, I really appreciate everything you did for me."

Workers Compensation Client

"Thank you for such great assistance with the transaction of Flying Domestics on behalf of Lorna Good. It has been such such a pleasure to work with the HHG Legal Group and I look forward to working with you in the future."

Jim Goodwin

"Simon Creek and his team were at all times empathic, professional and confident.  My matter needed to be addressed within a pressing time frame, and their availability at short notice and contact after hours was much appreciated.  It caused me considerable stress, but having such a thoroughly reliable and competent team to call on helped me to feel in control. Although I hope not to need their services again in future, I would be confident in doing so!"

Dr Lana Bell

"A good outcome is what we can expect.  A great outcome is a sign of a company which does the very best for their clients. A very big thank you to Daniel Morris for showing empathy towards my small and much needed legal action.

To HHG Legal Group, thank you for a great outcome.  I would recommend your company to anyone seeking legal services."

Jan Atkinson

"Your support this morning was amazingly kind, not to mention your totally reassuring competence, knowledge and wisdom that you used on my behalf.  It was extremely reassuring to have your knowledgeable support, and I particularly appreciated your real and obvious kindness to me. It means so much at a very difficult time. I'm so grateful to you."

Family Law Client

"I highly recommend the services of HHG Legal Group for both personal and business needs. HHG is very up to date with legal advice and are in tune with the evolution of business."

Robert Forgione

"Sue and myself would like to thank HHG for the way in which our dispute was resolved. It is good to know that people who do not have an understanding of the legal system can rely on people like yourself and the company you represent. Without the assistance of HHG we could not have resolved the problems we were facing, not only have we resolved the issue but the outcome was more favourable then we would have thought possible. Thank-you and please pass on our thanks to all those who worked behind the scenes to achieve this outcome."

Rick and Sue Ashton

"Janene was very professional and we established a good rapport quickly. The subject of death and wills can be quite confronting to deal with, however Janene's approach was soft and accommodating."

Lynette Livesey

"A big thank you to HHG for their professional service, continued support, and wide range of legal knowledge. Our clients have given us nothing but kind words regarding HHG Legal Group and so we have no hesitation in referring and recommending Simon Creek and HHG Legal Group for their outstanding services and legal expertise."

Nigel Plowman, Director at McKinley Plowman & Associates

"Simon is a friendly and practical legal advisor. I have received great feedback from the clients I have referred to him and his team at HHG Legal Group."

Richard Beal, Director at BDO

"Over the last few years, I have been impressed by Simon’s legal ability, management skills, entrepreneurial spirit, personal integrity and people skills. He appears to be that rare breed of lawyer – both knowledgeable and commercial."

Michael Malone, Founder of iiNet

"Our family has been a client of HHG Legal Group over many years and most recently in 2013 and February 2014.  Business has included drawing up of wills for three generations and preparing of probate for my father in law.

I would have no hesitation in recommending HHG Legal Group to anyone requiring such services."

Bernice Climie

"You should be congratulated for the manner in which your staff address clients and we found our dealings with your company, once again a very pleasant experience and we would like to truly thank you for your efforts."

Steve Harvey and Jane Powell

"HHG Legal were absolutely fantastic. Extremely responsive and brought calm to our chaotic family situation through their knowledge and caring attitude. Extremely professional from our very first contact with them and they expertly guided our family though the required legal process over almost a 12 month period."

Amanda Williamson

"Fantastic team! They really care about their client. Tim Colcutt is a 'go that extra mile' guy who gives his client his all. I can't recommend HHG and Tim enough."

Kerry Samson

"Anne Hurley has been such a valuable resource of information and advice, her wealth of knowledge is truly impressive and her ability to explain things in a way that makes them easily understood is very much appreciated. Anne and the wider HHG Legal Group are always a pleasure to work with."

Giorgia Parham

"I had a fantastic lawyer in Anne Hurley. She helped me out a great deal with good, sound advice in a friendly , professional manner. First class, thanks Anne"

Graeme Hammond

"Marine Plant Systems has been working with HHG Legal Group for a few years now and they continually provide first class service. Their professional advice has been invaluable to our company."

Carolin Grimm

"We were kept up to date at all times. Pricing was always updated over the time period so we remained "in budget". Personal access to someone whenever I had questions. All in all a great experience without too much fuss."

Rosslyn Tasker - COO AltusQ Pty Ltd

"Good service you can count on."

Miles Lee

"HHG Legal Group have provided outstanding support as I have taken the journey of buying a business, their professionalism is beyound reproach. Their assistance throughout the Due Diligernce process have been invaluable, I would fully recommend them."

Mark Armitage

"I have experienced how good the HHG Legal Group team are over the last 6 years and highly recommend them."

Lyn Hawkins

"Very friendly and efficient service - what a pleasure working with Anne."

Jacques Taylor

"I highly recommend Daniel from HHG Legal Mandurah. When dealing with a complicated legal property matter recently I was extremely impressed by Daniel's honesty and integrity and the legal advice I received. I am very happy with the service from HHG Legal."

Tony Walker