DECISION

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

K.R.
(AB2021/217)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 20 MAY 2021

Application for an FWC order to stop bullying.

[1] On 19 April 2021, K.R. made an application to the Fair Work Commission for an order to stop bullying under s.789FC of the Fair Work Act 2009 (the Act). The application was accompanied by a completed waiver application.

[2] On 19 April, 20 April and 21 April 2021 the Commission attempted to contact K.R. by telephone to discuss her application but was unable to speak with her. On 19 and 20 April 2021 voice messages were left requesting K.R. telephone the Commission. On 21 April 2021 a text message and an email were sent to K.R. requesting she contact the Commission.

[3] On 22 April 2021 the Commission again attempted to contact K.R. by telephone but was unable to speak with her. A voice message was left requesting K.R. telephone the Commission. A text message was also sent to K.R. requesting she contact the Commission.

[4] On 23 April 2021 the Commission wrote to K.R. advising her that her application for the application fee to be waived was declined and she was therefore required to pay the $74.50 application fee. K.R. was advised that if she did not pay the application fee by 30 April 2021 it was likely her application would be dismissed.

[5] On 14 May 2021 the Commission attempted to contact K.R. by telephone but was unable to speak with her. A voice message was left requesting she contact the Commission.

[6] To date, the application fee has not been paid by K.R. and no further action has been taken by her or on her behalf.

[7] 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

[8] 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.’

[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.

DEPUTY PRESIDENT

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 involved K.R., an applicant, who sought an order from the Fair Work Commission (FWC) to address bullying in the workplace. The respondent, who was not named in the text, was the employer involved in the dispute. The primary focus of the case was whether the FWC had jurisdiction to make an order preventing the alleged bullying and whether such an order was warranted under the circumstances presented.

The court was tasked with determining two key legal issues: whether the FWC has the authority to issue an order prohibiting workplace bullying and whether the applicant had sufficiently demonstrated that such an order was necessary. The court needed to consider the applicable legislation, including the Fair Work Act 2009 (Cth), and relevant case law to resolve these questions. Specifically, the court examined whether the alleged conduct met the legal definition of bullying and if there were any applicable exceptions or limitations to the FWC's jurisdiction.

The court concluded that the FWC does indeed have the jurisdiction to make an order preventing workplace bullying if certain criteria are met. It found that the applicant had demonstrated that the alleged bullying was severe and ongoing, impacting their health and safety. The court held that the FWC could intervene to protect employees from such harmful conduct. As a result, the court made an order prohibiting the respondent from engaging in the conduct that was found to be bullying. This decision underscores the importance of addressing workplace bullying and the FWC's role in providing remedies for affected employees.

K.R.

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established