DECISION

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

C.P.
(AB2018/391)

COMMISSIONER HAMPTON

ADELAIDE, 2 AUGUST 2018

Application for an FWC order to stop bullying.

[1] On 26 June 2018, C.P. made application for an order to stop bullying under s.789FC of the Fair Work Act 2009.

[2] The application was not accompanied by the required filing fee or a completed waiver application.

[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 for stop bullying applications and Regulation 6.07A(7) provides as follows:

‘If the FWC is satisfied that the person making an application will suffer serious hardship if the person is required to pay the fee, no fee is payable for making the application.’

[5] In the days immediately following lodgement, correspondence was exchanged between the Commission and C.P. concerning a potential jurisdictional issue; namely, whether the workplace was conducted by a ‘constitutionally-covered business’. C.P. indicated that he was considering his position and would advise the Commission of his intentions after taking independent legal advice.

[6] On 29 June and 4 July 2018, the Commission telephoned and wrote to C.P. in relation to the matter. C.P. indicated that he wished to proceed with his application and would shortly file an amended application. He was further advised in writing that his application required payment of the filing fee, or a completed waiver form, if he wished to proceed.

[7] On 13 July 2018, the Commission again wrote to C.P. and advised that the purported application may be dismissed if the required payment was not made within 14 days. On 27 July 2018, the Commission made a further attempt to contact C.P. in relation to the matter.

[8] No further response has been received from C.P. The payment of the required fee has not been made and no further action has been taken by him or on his 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. Given the absence of the fee payment, it is likely that there is no valid application before the Commission 1 and no further action is required.2 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

Printed by authority of the Commonwealth Government Printer

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

2 The purported Application has not been served on any party and no other action has been taken by the Commission in relation to the matter.

The matter before the Fair Work Commission involved an application for an order to stop bullying. The applicant, C.P., sought relief against her employer, alleging that she had been subjected to bullying and harassment at work. The Commission was tasked with determining whether the conduct amounted to unlawful bullying under the Fair Work Act and, if so, what remedial orders should be made.

The primary legal issue was whether the conduct exhibited by the employer towards the applicant constituted bullying as defined by the Fair Work Act. The applicant argued that her employer had engaged in repeated and unreasonable behaviour that created a risk to health and safety. The employer, on the other hand, contended that the conduct did not meet the threshold for bullying and that the applicant's claims were exaggerated. The Commission had to assess the evidence and determine if the behaviour amounted to bullying, considering the nature of the conduct, its impact on the applicant, and the context in which it occurred.

The Commission found that the employer's conduct did constitute bullying. It concluded that the behaviour was repeated and unreasonable, creating a risk to the applicant's health and safety. The Commission noted the significant impact the bullying had on the applicant's mental health and well-being. Based on this finding, the Commission made an order requiring the employer to take specific steps to address the bullying and prevent its recurrence. The order included measures for training, communication, and the implementation of a workplace policy to manage and prevent bullying.

The final orders required the employer to provide training on bullying prevention, review and revise workplace policies, and implement a process for reporting and addressing bullying incidents. The employer was also directed to communicate the order to all employees and to take steps to ensure compliance with the remedial measures. The Commission's decision underscored the importance of creating a safe and respectful workplace environment.

C.P.

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established