On the eighth day of Christmas...time to prepare for the new bullying laws which commence in the New Year

Posted on 11 December 2013

Bullying Order and Fair Work Commission

We have published a number of blogs earlier this year on the new bullying laws that commence on 1 January 2014. The Fair Work Commission (FWC) has recently confirmed that they are expecting over 3500 applications for bullying orders over the next 12 months. As a result of the expected influx of such applications the FWC has release details on how they will case manage a bullying order application.

Process of an application for a Bullying Order

Once an application has been received the FWC has 14 days in which to start to deal with the matter which requires the FWC to inform itself through inquiries or by requiring the provision of information from other parties. Where the application has been assessed and approved by administrative staff at the FWC, it will be served on the Respondent (Employer) and seek written responses to the allegations. At this point the FWC will also gauge whether mediation would be an appropriate way to address the matter.

The next step involves the FWC preparing a report and submitting it to the Panel Head (or assigned Commissioner) to decide whether the matter should be sent to a hearing, mediation or for a declaration by the FWC. If the matter is not resolved at mediation it will be sent to hearing and after the evidence is assessed by the FWC a decision will be made as to whether orders to prevent further bullying are to be made or the application is to be dismissed. There is a right to appeal a decision made at hearing to the Full Bench of the FWC for both the applicant/"worker" and the respondent/employer.

It is important to understand that there will be no compensation awarded by the FWC in circumstances where an order to prevent bullying is granted. The purpose of the new laws is to ensure that bullying stops in the workplace and allows the applicant to return to work free from bullying.

Confidentiality of the parties involved in a dispute regarding bullying mediations or determinations will be maintained and the identities of both parties will not be disclosed in the FWC's public listings. However, hearings in anti bullying matters will generally be disclosed in public unless an order of the FWC is granted for a private hearing.

It is currently unknown whether the FWC will grant leave for agents or solicitors to appear at hearings or mediations. However, considering the recent stance taken by FWC in other applications dealt with by them it is likely that the FWC will want to deal directly with the applicant/worker and respondent/employer without the involvement of lawyers or agents.

If you need further advice on how to deal with an application to the FWC for an order to prevent bullying in your workplace please contact our Workplace Law team now.