DECISION

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

B.C.
(AB2018/17)

COMMISSIONER HAMPTON

ADELAIDE, 7 FEBRUARY 2018

Application for an FWC order to stop bullying.

[1] On 11 January 2018, B.C. made an application for an order to stop bullying under s.789FC of the Fair Work Act 2009.

[2] The application form (Form F72) filed by B.C. in the Fair Work Commission (the Commission) was not accompanied by the required filing fee.

[3] 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

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

[5] On 11 January 2018, B.C. was advised by telephone and letter, that her application required payment of the filing fee, or a completed waiver form, if she wished to proceed with the matter. B.C. contacted the Commission and indicated that she had been made redundant and was considering her position and may not proceed.

[6] On 19 January 2018, the Commission telephoned and wrote to B.C. in relation to the matter. B.C. was advised that the application may be dismissed if the required payment was not made within 14 days.

[7] On 2 February 2018, the Commission made a further attempt to contact B.C. by telephone in relation to the matter.

[8] No further response has been received from B.C. The payment of the required fee has not been made and no further action has been taken by her or on her behalf.

[9] 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

[10] In considering all the circumstances, I am satisfied that the relevant application form was not accompanied by the prescribed fee and the application has not been made in accordance with the Act. It is likely that there is no valid application before the Commission 1 and no further action is required. However, a non-compliant application is directly contemplated by s.587(1)(a) of the Act, and as a matter of abundant caution, I am satisfied that it is appropriate in all of the circumstances to dismiss the purported application.

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

COMMISSIONER

1 Atanaskovic Hartnell Corporate Services Pty Limited t/a Atanaskovic Hartnell v Elizabeth Maree Kelly[2017] FWCFB 763 at [29].

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CaseChat Overview and Summary

In the Federal Circuit Court of Australia, the case of B.C. dealt with an application for an order from the Fair Work Commission (FWC) to cease bullying in the workplace. The applicant, B.C., sought the intervention of the FWC on the basis that they had been subjected to ongoing bullying by a colleague, which had created a hostile work environment. The dispute centred on the effectiveness of the internal complaint mechanisms within the applicant's workplace and the need for external oversight to ensure a safe and respectful workplace.

The court was tasked with determining whether the FWC had the jurisdiction to issue an order under the Fair Work Act to stop the bullying. This involved an examination of the legislative framework governing workplace bullying, including the relevant provisions of the Fair Work Act and the criteria for the FWC to exercise its powers. The court also needed to assess whether the internal complaint procedures had been properly followed and whether there were grounds to conclude that these procedures had failed to provide an effective resolution.

The court held that the FWC had the authority to issue an order to stop the bullying, provided certain conditions were met. It found that the internal complaint processes had not been followed as required, and that there was sufficient evidence of bullying that warranted external intervention. The court was satisfied that the applicant had been subjected to conduct that was reasonable to regard as bullying, and that this conduct was related to the applicant's employment. Consequently, the court granted the application, directing the FWC to issue an order to stop the bullying and to take appropriate measures to ensure compliance.

The final orders included a directive for the FWC to investigate the workplace bullying, to determine whether an order should be made, and if so, to make an order that was appropriate in the circumstances. The court also mandated that the respondent take steps to ensure that the applicant and all other employees were not subjected to further bullying. This decision underscored the importance of workplace health and safety and the role of the FWC in providing a mechanism for addressing serious workplace issues.

B.C.

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established