When a worker lodges an application for an order to stop bullying in the workplace
it goes to a special team at the Fair Work Commission.
The Anti-Bullying Case Management Team commences work on applications very quickly.
Their first step is to discuss with the applicant their application and the next steps in the
process.
They answer any questions and confirm that the applicant wishes to proceed.
They also check the application to make sure it is complete.
The team also contacts the employer or principal of the applicant
and the person, or people, accused of bullying behaviour
and their employer or principal, if different from the applicant.
They first alert the employer or principal that an application
has been made and a process has commenced.
This means the employer or principal of the persons named,
that is the person or people accused of the bullying behaviour,
has an opportunity to discuss the matter with them,
prior to further dealings with the Commission.
It is important to understand that a copy of the
Form F72 application for orders to stop bullying
and any additional material will be sent to all of the
parties identified in the matter, so that they can respond to it.
The Commission sends copies of the application to the employer or principal
the person, or people, alleged to be involved in the bullying
and the employer of those people, if different to that of the applicant.
This is called ‘serving’ the application.
Employers or principals who are served with an application must submit a
response to the Commission within seven calendar days.
They use a form called a Form F73 titled
“Response from an employer/principal to an application for an order to stop bullying”.
This sets out their response to the allegations and enables them to provide their version
of events.
They must send copies to everyone involved in the matter using the contact details in
the application.
A person or people named as having allegedly engaged in bullying behaviour do not have
to provide a response, but can do so if they wish.
They use a form called a Form F74 titled
“Response from a person against whom bullying has been alleged to an application for an
order to stop bullying”,
which must also be returned to the Commission within seven calendar days.
They, too, must supply copies of their response to everyone involved in the matter.
Parties responding to an application may raise objections on a number of jurisdictional grounds.
They can do this if they think that a technical or
legal reason prevents the Commission from making an order to stop bullying.
In some cases, these applications start a discussion between the parties
where people’s feelings become better understood
and the people involved are able to resolve the matter themselves.
At any time the parties are free to resolve the issues themselves,
without the Commission’s involvement.
If they do, the applicant can simply withdraw their application and the matter will be closed.
If not withdrawn a matter will progress to a mediation, conference or hearing at the
Commission.
Sometimes a Member may hold a preliminary conference
which can help the Commission to understand the issues involved.
Mediation is a confidential and voluntary process that is quite informal.
With the help of a Commission mediator the parties can sometimes resolve the issue themselves.
A conference is more formal than mediation, but less formal than a hearing.
Sometimes a Commission Member might convene a conference to help the parties work out
an agreed outcome – this is called a conciliation.
The Commission may also convene a Determinative Conference, where evidence and arguments are
put to the Commission and a decision is made about the application.
In both types of conference some informal discussions can still occur around the table.
Hearings are a much more formal proceeding where evidence and submissions follow a more
structured process.
The Commission then makes a decision about the application.
For more information see the video ‘Conferences and hearings explained’ – there’s a
link on the page you are on now.
The Commission has powers to issue orders that will prevent further bullying from occurring.
That could include, for example, employers monitoring behaviours or a person being ordered
to stop a behaviour.
However, the Commission cannot order financial penalties be applied or that financial compensation
be paid.
Serious penalties can apply if orders are not followed.
The Commission may dismiss an application, if it is found to be unsubstantiated.
Applications will also be dismissed if a jurisdictional objection is upheld, meaning the Commission
cannot hear the matter.
Or, when it is not considered appropriate to issue orders, the Commission may make no
orders at all.
At any time, even during a conference or hearing, an applicant can withdraw their application
if a satisfactory resolution is reached, or the applicant does not wish to continue.
Other videos in this tour explain in detail how to respond to an application and what
happens in conferences and hearings.
Just follow the links from the page you are on now.