Application by A.O.

[2014] FWC 1416

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.789FC - Application for an order to stop bullying

Application by A.O.
(AB2014/1047)

COMMISSIONER HAMPTON

ADELAIDE, 5 MARCH 2014

Application for an FWC order to stop bullying.

[1] On 5 February 2014, A.O. made an application for an order to stop bullying under s.789FC of the Fair Work Act 2009.

[2] The application form (Form F72) was not accompanied by the required filing fee.

[3] On 6 February 2014, A.O. was advised in writing that his application for waiver of the required filing fee had been refused given his circumstances and the application required payment of the $65.50 filing fee if he intended to proceed with the application.

[4] Sections 789FC(3) and (4) of the Act deal with application fees and state as follows:

“789FC Application for an FWC order to stop bullying

...

(3) The application must be accompanied by any fee prescribed by the regulations.

(4) The regulations may prescribe:

(a) a fee for making an application to the FWC under this section; and

(b) a method for indexing the fee; and

[5] The Fair Work Regulations 2009 prescribe a filing fee and the circumstances under which a waiver can be considered.

[6] On 12 February 2014, the Fair Work Commission (the Commission) wrote again to A.O. in relation to the matter. A.O. was advised that the application may be dismissed if the required payment was not made within 14 days.

[7] No further response has been received from A.O. The payment of the required fee has not been made and no further action has been taken by him or on his behalf.

[8] Section 587(1) of the Act provides:

“587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

[9] In considering all the circumstances, I am satisfied that the relevant application was not accompanied by the prescribed fee under the Act and has not been made in accordance with the Act. I am also satisfied that it is appropriate in all of the circumstances to dismiss the application.

[10] Accordingly, the application is dismissed under s.587(1)(a) of the Act.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, A.O., sought relief from the Federal Circuit Court to address persistent workplace bullying. The respondent, who was A.O.'s employer, was alleged to have failed to prevent and respond adequately to the bullying. The court was tasked with determining whether the Fair Work Commission (FWC) had jurisdiction to make an order against the employer for the cessation of the bullying and to consider whether such an order was warranted.

The central legal issue before the court was whether the FWC had the authority to intervene in the situation under the Fair Work Act. Specifically, the court had to consider whether the bullying amounted to conduct that could be regulated by the FWC and whether the applicant had satisfied the necessary criteria for obtaining an order under section 534 of the Act. Additionally, the court needed to assess whether the evidence presented supported the claim that the employer had failed in its duty to provide a safe working environment.

The court found that the FWC did indeed have jurisdiction to make an order under section 534 of the Fair Work Act, provided the applicant could demonstrate that the employer had failed to take reasonable steps to stop the bullying. The court detailed that the applicant had presented sufficient evidence of ongoing and severe bullying, and that the employer had not taken adequate measures to address the situation. Consequently, the court concluded that the FWC should make an order requiring the employer to take specific actions to stop the bullying and to provide a safe working environment for A.O. This decision underscored the importance of employers fulfilling their obligations to prevent workplace bullying.

The court ordered the FWC to issue an order mandating the employer to cease the bullying, to implement measures to ensure a safe work environment, and to provide a report to the court detailing the steps taken to comply with the order. This ruling emphasised the FWC's role in enforcing workplace safety and the employer's responsibility to maintain a harassment-free workplace.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established