7 How bullying matters are resolved


The Fair Work Commission deals with applications
for orders to stop workplace bullying in a number of ways such as conducting a mediation,
conference or hearing. The Commission’s role in relation to bullying
is to stop the behaviour from continuing. It cannot investigate bullying allegations. Once an application has been made, the Commission
can only listen to the parties, consider the evidence provided and issue orders
if appropriate. Often though, matters are resolved prior to
any conference or hearing because the application can trigger a conversation between the parties
that leads to an agreed resolution. The Commission decides how to deal with a
matter based on the complexity and issues involved. The Commission has an obligation to deal with
matters as quickly and informally as the circumstances allow and may hold a
mediation, conference or hearing. Mediations are an informal, private discussion
between the parties and a Commission Mediator. With the assistance of a Commission mediator,
parties can agree to a resolution without needing a conference or hearing. Sometimes a Member may hold a preliminary
conference, which can give the Commission a better understanding of the issues involved
in the application. Another conference or hearing may then be
held to consider whether to make an order to prevent bullying. Where the Commission intends to make a binding
decision, such as an order, all parties will be involved in the process, regardless of whether there is a conference
or hearing. Hearings are generally held in public, while
conferences are held in private. Conferences and hearings are also both conducted
by Members of the Fair Work Commission. Their role is to assist the parties to reach
a resolution. Or, where necessary, to decide if bullying
has occurred and if orders to prevent further bullying are required. Members are assisted by a person called an
associate. Other people in the room will include the
applicant worker, the employer or employers or principals and
the person, or people, accused of bullying behaviour. Parties can also bring along support people,
such as friends or family. Meanwhile some, or all, of the parties may
have representatives to speak for them. You generally need the Commission’s permission
if that representative is a lawyer. But you don’t need permission if it’s an employee,
for example in house counsel, or a person from a union
or employer body. Once all responses to an application have
been received the Commission will advise parties how their
matter will be dealt with. Parties will then receive a Notice of Listing
from the Commission telling them the time, date and location of
the conference, hearing or mediation. The Notice of Listing could also include instructions
on what written materials, if any, might need to be lodged with the Commission
beforehand. These are called directions. If a party can’t attend on the allocated date,
or believes the matter should be delayed, they can apply for an adjournment. This must be done in writing and parties must
provide an explanation of why the adjournment is needed. Adjournments are only granted where there
are substantial grounds. If a party simply doesn’t turn up to a conference
or hearing, orders can still be made in their absence. There are three potential outcomes from a
determinative conference or hearing. The application can be dismissed. This could be because the Commission does
not have jurisdiction to deal with the matter. It may also be because the application does
not meet all of the requirements of the Fair Work Act. For example, the business involved doesn’t
meet the definition of constitutionally-covered or the behaviour is found not to meet the
definition of bullying conduct or the Commission isn’t satisfied that there
is an ongoing risk of bullying conduct. The worker can withdraw their application
at any stage of the proceedings. This may be because they do not wish to continue
with the application, or the risk of the behaviour continuing has
been eliminated. For example, sometimes people or employers
have been unaware that a problem existed and once aware of it they can make the necessary
changes to prevent further bullying. Or, if the Commission is satisfied that bullying
has occurred, it can make orders. Orders are decided based on the circumstances
of each matter and are directed at stopping the bullying behaviour
from continuing. The Commission can make any order it considers
necessary to prevent further bullying, with two important
exceptions. It cannot order financial penalties to be
imposed. And it cannot order any type of financial
compensation. Orders to stop bullying, for example, can
include things like ordering a person or people to stop a specified
behaviour ordering the employer to provide training
and support to workers ordering a change in working arrangements or ordering that an employer should regularly
monitor behaviour in the workplace . Significant penalties can apply if parties
fail to comply with an order. Normally, each party bears their own costs
in hearings and conference. But if applications or responses to them are
vexatious, without cause or clearly without any prospects of success the Commission can order a party to pay some,
or all, of the costs of other parties. For more information on the Commission’s anti-bullying
jurisdiction follow the links on the page you are on now.