What is considered workplace bullying under the Fair Work Act, and what can I do about it?

In Plain English

If you're being bullied at work, the Fair Work Act 2009 provides a way for you to seek help. Bullying is defined as repeated, unreasonable behavior by an individual or group that creates a risk to your health and safety while you are at work. It's important to note that reasonable management actions, done in a reasonable way, are not considered bullying.

If you believe you are being bullied, you can apply to the Fair Work Commission (FWC) for an order to stop the bullying. The FWC can then make orders (excluding orders for payment) to prevent further bullying.

Detailed Explanation

The Fair Work Amendment Act 2013 introduced measures to address workplace bullying by inserting Part 6-4B into the Fair Work Act 2009.

Definition of Bullying:

According to section 789FD(1) of the Fair Work Act 2009, a worker is bullied at work if:

  • While the worker is at work in a constitutionally-covered business:
    • An individual; or
    • A group of individuals;
  • Repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member; and
  • That behaviour creates a risk to health and safety.

Reasonable management action carried out in a reasonable manner is not considered bullying (section 789FD(2)).

A "constitutionally-covered business" is defined in section 789FD(3) of the Fair Work Act 2009 as a business or undertaking conducted by:

  • A constitutional corporation; or
  • The Commonwealth; or
  • A Commonwealth authority; or
  • A body corporate incorporated in a Territory; or
  • A business or undertaking conducted principally in a Territory or Commonwealth place.

Application to the FWC:

Section 789FC(1) of the Fair Work Act 2009 states that a worker who reasonably believes that he or she has been bullied at work may apply to the FWC for an order under section 789FF. The definition of "worker" in this context is the same as in the Work Health and Safety Act 2011, excluding members of the Defence Force (section 789FC(2)). This definition includes employees, contractors, subcontractors, outworkers, apprentices, trainees, students gaining work experience, and volunteers.

FWC Orders:

If the FWC is satisfied that a worker has been bullied at work and there is a risk that the worker will continue to be bullied, the FWC may make any order it considers appropriate (other than an order requiring payment of a pecuniary amount) to prevent the worker from being bullied at work (section 789FF(1) of the Fair Work Act 2009).

In considering the terms of an order, the FWC must take into account (section 789FF(2) of the Fair Work Act 2009):

  • Any final or interim outcomes arising out of an investigation into the matter that is being, or has been, undertaken by another person or body.
  • Any procedure available to the worker to resolve grievances or disputes.
  • Any final or interim outcomes arising out of any procedure available to the worker to resolve grievances or disputes.
  • Any matters that the FWC considers relevant.

FWC Process:

The FWC must start to deal with an application under section 789FC within 14 days after the application is made (section 789FE(1) of the Fair Work Act 2009). The FWC may conduct conferences to mediate or conciliate, make recommendations, or express opinions (Schedule 3A of the Fair Work Amendment Act 2013).

Making a Response

According to Rule 86 of the Fair Work Commission Rules 2024, if you are named as an employer or principal in an application made under section 789FC of the Fair Work Act 2009 for an order to stop bullying at work, you must lodge a response with the FWC within 7 days after the day on which you were served with the application.

Important Considerations:

  • Contravening an Order: A person to whom an order under section 789FF applies must not contravene a term of the order (section 789FG of the Fair Work Act 2009).
  • Relationship with WHS Laws: Section 789FH of the Fair Work Act 2009 clarifies that actions under work health and safety laws are permitted, even if an application has been made to the FWC.
  • Defence and National Security: Part 6-4B is not intended to prejudice Australia’s defence, national security, etc. (sections 789FI, 789FJ, 789FK, and 789FL of the Fair Work Act 2009).