When the Fair Work Commission receives a worker's application for an order to stop bullying
it will contact all of the people named in the application,
including the relevant employers or principals and any individuals named,
and seek a response from them.
There can often be a wide range of people involved,
as some people in the matter may work for different employers.
The Commission asks all of these parties to respond to the application
so it can understand and consider everyone's side of the story,
and decide the most appropriate way to deal with a matter.
The Commission's focus is on restoring productive and safe working relationships.
The Commission contacts each person who has been named
to have allegedly engaged in bullying behaviour.
It also contacts the employers or principals of both the applicant
and of the person, or people, named.
It is possible for a number of people with different employers to be involved in a bullying
matter.
Often both the person, or people, named and the applicant have the same employer.
But that is not always the case.
For example, sometimes a named person may have a different employer to the applicant.
They might be a contractor who visits a workplace or they could be a visitor or client of the
workplace.
In this video, when we say employer or principal we mean both the applicant's employer
and the employer of anyone accused of bullying behaviour.
When the Fair Work Commission serves an application
the employer or principal must respond within seven calendar days.
The response has to be on a special form called an F73
Response from an employer/principal to an application for an order to stop bullying.
The Commission will send this form to the employer or principal.
It can also be downloaded from the Commission's website.
Within seven calendar days the employer or principal must send a copy
of their completed response to the Fair Work Commission
the applicant the person, or people, alleged to have bullied the applicant
and, any other employers or principals involved.
Any representatives of the other parties should also be sent a copy.
All the contact details needed for these people should be in the application.
The person, or people, alleged to have engaged in bullying behaviour
are not required to respond to an application.
But they can respond if they wish to.
They need to use a form called a F74
Response from a person against whom bullying has
been alleged to an application for an order to stop bullying.
This form is sent when the application is served.
It can also be downloaded from the Commission's website.
If they choose to respond they must, within seven calendar days,
send a copy of their response to everyone involved.
That's the Fair Work Commission, the applicant
any other person or people accused of bullying behaviour
the applicant's employer
and, any other employers or principals involved.
Any representatives of the other parties should also be sent a copy of the response.
All the contact details needed for these people should be in the application.
Let's look first at the employer's compulsory response - the form F73.
This is what it looks like.
The first section is headed the applicant.
This is the worker who has filed the application.
Their first name, surname and the Commission matter number
will be on the paperwork the employer receives from the Commission.
Because this is the employer or principal responding,
it is their details that go in the Employer or principal section.
They must fill in all the fields, including trading name if it is different from the legal
name.
In the next question the employer or principal can identify which party they employ.
As we explained earlier it could be the applicant
or the person accused of bullying behaviour or both.
If it's neither they should let the Commission know the correct party to contact,
if they have this information.
The employer can then indicate if they need special assistance,
such as an interpreter or hearing loop.
Also, if they are to be represented by a friend, industry group
or lawyer they should tell the Commission here.
Employers need to provide all of their representative's contact details
so that they can also receive all of the paperwork.
The two questions in section one - employment or engagement - are really important.
First, the employer or principal must tell the Commission if the applicant
is still employed at the workplace where the alleged bullying occurred.
Then, they must say if the person alleged to have bullied the applicant is still involved
at that same workplace.
The answers to these questions can be important in determining if the Commission can issue
orders to stop bullying.
We'll come back to that in a few moments.
In section two the employer or principal discusses their awareness of the alleged bullying behaviour.
The first question asks if the employer or principal was aware that the worker perceived
they were being bullied at work.
If the employer or principal is not sure what constitutes bullying behaviour under the Fair
Work Act, the Commission's Anti-bullying benchbook or our video 'What is workplace bullying'
may help.
There are links to these resources on the page you are on now.
In question 2.2 the employer or principal can describe what, if anything, was reported
to them about the alleged bullying behaviour.
Section three asks if the applicant has made any complaint about the alleged bullying.
If they have, then in the next question, 3.2, the employer or principal should describe
the complaint made, how the employer responded to it and what outcomes, if any, were reached.
In this section, the employer or principal can respond to the claims
including whether, or not, they agree that the worker experienced bullying at work.
The employer or principal can take as much space as needed to answer these questions.
Additional pages can be attached to the response if needed.
Section 5 asks if the employer has a bullying policy or procedure for resolving disputes
and if the applicant made a complaint using those processes.
Section six deals with reasonable management action.
This section is important, as an employer or principal is entitled to manage a worker's
performance, provided they do so reasonably.
The employer or principal should inform the Commission if the worker
had been told they were not performing to required standards,
or they were facing disciplinary action.
The employer or principal can explain the background and actions taken by them.
Then, Section 7 deals with jurisdictional objections.
An employer or principal can raise an objection to the Commission's jurisdiction
over a matter if they believe the Commission does not have the power to deal with it.
There are a number of possible reasons for a jurisdictional objection to be made.
These include the applicant not meeting the definition of a worker or where their place
of employment or the workplace is not a constitutionally-covered business.
The national anti-bullying laws cover constitutionally-covered businesses.
This includes most businesses that have Proprietary Limited or limited in their name.
Incorporated associations may also be covered.
It includes the Commonwealth and Commonwealth authorities.
And it covers a financial or trading corporation formed in Australia or a foreign corporation.
While many businesses are included in that definition, the following businesses are not:
Sole traders and partnerships
State government departments and some state agencies
some local government organisations
and, corporations without significant trading or financial activities.
Meanwhile, members of the defence force are also not covered by these laws.
A worker can be an employee, but they don't have to be.
Workers also include contractors, sub-contractors and their employees
an employee of a labour-hire company
an outworker or volunteer
or, an apprentice, trainee or student gaining work experience.
An employer can also lodge an objection if they believe
the worker was not at work when the behaviour occurred
or, that the alleged bullying behaviour was actually reasonable management action
that was carried out in a reasonable manner.
Other, less common, objections may relate to matters that involve the defence force
or national security.
The Commission's Anti-bullying Benchbook contains more useful information on eligibility.
There is a link to it on the page you on now.
Finally, every field in the signature panel should be completed.
No fee is required and the response is now ready to lodge.
People against whom bullying has been alleged can complete a similar form, called an F74.
Unlike the employer, they are not obligated to respond.
But they can choose to respond if they wish.
The F74 is similar to the employer response, but it has fewer sections and questions,
dealing mainly with awareness of the behaviour and responses to the applicant's allegations.
This is an opportunity for the persons alleged to have engaged in bullying behaviour to explain
their side of the story,
including where they have a different view about the events from the other parties.
Jurisdictional objections can also be raised, where appropriate, in this response.
All responses are required to be lodged with the Fair Work Commission within seven calendar
days of the application being served.
Everyone must also send copies to all parties involved.
The Commission does not do this.
The next step after responses are lodged is likely to be a conference or a hearing before
the Commission.
To find out more watch the video 'How bullying matters are resolved'.
There is a link to that video on the page that you are on now.