s.789FC

Workplace Bullying. What Is It?

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Changes to the Fair Work Act 2009(cwth) that came into force on 01 Jan 2014 mean that a worker who believes that they are being bullied at work, can apply to the Fair Work Commission for an order to stop bullying.

Under the Act, a worker is being bullied when a person or a group of people repeatedly behave unreasonably towards a worker or a group of workers AND the behaviour creates a risk to health and safety.

Examples of bullying behaviour

The Fair Work Commission website lists the following as examples of what bullying behaviour may be.
Bullying behaviour may involve, for example, any of 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.

It is important to note, that for the behaviour to be classed as bullying, the behaviour must be repeated and unreasonable and must create a risk to health and safety.

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Significant Decision From Full Bench Fair Work Commission Regarding Bullying.

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Yesterday, the Full Bench of the Fair Work Commission handed down a decision of significance with regards to the way that it assesses applications for an order to stop bullying under s.789FC  of the Fair Work Act 2009.

An employee lodged an application for an order to prevent her from being bullied at work. The applicant was allegedly subjected to bullying behaviour from November 2007 through to May 2013, though no bullying behaviour has occurred since May 2013.

This decision deals with the jurisdictional objection from the respondent, being that the Commission has no jurisdiction to hear and determine an application involving alleged bullying conduct which occurred prior to 1 January 2014, the date that Part 6-4B commenced

Points of interest:

  • Paragraph 7: Reference to ‘is at work’ in s789FD(1) simply provides the context in which the bullying behaviour has taken place. The alleged bullying behaviour must take place prior to the making of an application for an order under s. 789FF.
    This was in response to the submission from the respondent that a worker can only be bullied at work from 1 January 2014, when the  legal characterisation of ‘bullying’ came into force.

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