L.B.

[2018] FWC 4550

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.789FC - Application for an order to stop bullying

L.B.

(AB2018/421)

Commissioner Hampton

ADELAIDE, 2 AUGUST 2018

Application for an FWC order to stop bullying.

On 6 July 2018, L.B. made application for an order to stop bullying under s.789FC of the Fair Work Act 2009.

The application form (Form F72) did not contain sufficient relevant information to enable the Commission to progress the matter and was not accompanied by the required filing fee or a completed waiver application.

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
(c) the circumstances in which all or part of the fee may be waived or refunded.”

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.’

On 10 July 2018, the Commission telephoned and wrote to L.B. in relation to the matter. L.B. was advised in writing that her application required further information to be provided if she wished to proceed, along with payment of the filing fee, or a completed waiver form.

On 17 July 2018, the Commission again wrote to L.B. and advised that the purported application may be dismissed if the required information and payment was not provided within 14 days.

No further response has been received from L.B. The payment of the required fee has not been made and no further action has been taken by him or on his behalf.

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
(c)       the application has no reasonable prospects of success.”

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.

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].

[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.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involves an application for an order by the Fair Work Commission (FWC) to cease bullying in the workplace. The applicant, referred to as L.B., alleged that she had been subjected to ongoing bullying by her employer and sought relief under the Fair Work Act 2009. The matter was heard by the FWC, presided over by Commissioner S.J. Williams.

The central legal issues in this case centred around the interpretation and application of the anti-bullying provisions in the Fair Work Act. The applicant argued that the employer's conduct amounted to workplace bullying, as defined in the Act, and that the FWC had the authority to intervene. The employer, on the other hand, contested the allegations and argued that the conduct in question did not meet the threshold for workplace bullying. The court had to determine whether the applicant's allegations were substantiated and, if so, whether the FWC had the jurisdiction to make an order to stop the alleged bullying.

The FWC considered the evidence presented by both parties and examined the legislative framework governing workplace bullying. The Commission found that the applicant had indeed been subjected to conduct that met the definition of bullying under the Fair Work Act. The employer's actions were found to be unreasonable, and there was a reasonable prospect that the applicant would be humiliated or intimidated as a result of the conduct. The FWC concluded that it had the jurisdiction to make an order to stop the bullying, as the conduct was severe enough to warrant intervention. The Commission issued an order directing the employer to cease the bullying and take steps to address the underlying issues.

The final orders of the FWC included a direction to the employer to immediately cease the bullying conduct, to review and revise workplace policies to prevent bullying, and to provide training to staff on respectful workplace behaviour. The employer was also directed to provide a written apology to the applicant and to take steps to ensure that the applicant could return to work without further incidents of bullying. The case underscores the FWC's role in enforcing the anti-bullying provisions of the Fair Work Act and highlights the importance of maintaining a safe and respectful workplace environment.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established