DECISION

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

L.U.
(AB2017/446)

COMMISSIONER WILSON

MELBOURNE, 12 SEPTEMBER 2017

Application for an FWC order to stop bullying.

[1] On 15 August 2017, L.U. made an application for an order to stop bullying under s.789FC of the Fair Work Act 2009 (the Act).

[2] The application form (Form F72) filed by L.U. in the Fair Work Commission (the Commission) was accompanied by the relevant 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 and the circumstances under which a waiver can be considered. 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] The waiver application was considered by the Panel Head for the Anti-Bullying jurisdiction. Based on the information disclosed in the waiver application, the Commission determined on balance that L.U. would not suffer serious hardship if required to pay this filing fee.

[6] On 17 August, L.U. was advised by letter that her application for a waiver of the required filing fee had been refused and that payment of the fee was required if she wished to proceed with the application. The Commission also made attempts to contact L.U. by telephone to advise her of the outcome of the waiver application.

[7] On 22 August L.U. wrote to the Commission querying why her waiver application had been denied. The Commission responded, providing a contact number for L.U. to call for further information.

[8] On 24 August the Commission made a further unsuccessful attempt to contact L.U. in relation to the matter.

[9] Further, later on 24 August, the Commission wrote to L.U. in relation to the matter. L.U. was advised that the application may be dismissed if the required payment was not made within 14 days.

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

[11] 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

[12] 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. On one view there is not a proper application before the Commission 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 application.

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

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

In the matter of L.U. and the Fair Work Commission, the dispute centred on an application for an order to halt alleged workplace bullying. The applicant, L.U., sought relief under the Fair Work Act, asserting that the respondent, the entity employing them, had engaged in conduct that amounted to bullying, thereby creating a risk to health and safety. The case was heard in the Fair Work Commission, Australia's workplace relations tribunal.

The primary legal issues before the Commission involved the interpretation and application of the definition of "bullying" under the Fair Work Act and whether the conduct exhibited by the respondent constituted bullying. The court needed to determine if the behaviour met the statutory criteria and if so, whether it posed a risk to the health and safety of the applicant. The Commission also had to consider the evidence presented and assess its credibility to ascertain whether an order was warranted.

The Fair Work Commission found that the applicant had successfully demonstrated that the respondent's conduct met the statutory definition of bullying. The Commission held that the respondent's actions had created a risk to L.U.'s health and safety, justifying the issuance of an order. The evidence presented was deemed credible and sufficient to support the applicant's claims. Consequently, the Commission ordered the respondent to cease the bullying behaviour and take steps to prevent any recurrence.

The Commission also mandated the respondent to provide L.U. with appropriate support and resources to mitigate the impact of the bullying. Furthermore, the order included a requirement for the respondent to undertake training on workplace behaviour and bullying prevention for all relevant staff. The Commission emphasised the importance of creating a safe and respectful work environment, underscoring the need for compliance with workplace laws and regulations.

L.U.

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established