21 Nov 2013

Anti-bullying process fleshed out by Fair Work Commission

Draft rules for how the Fair Work Commission will deal with bullying complaints have been released for public comment.

How the Fair Work Commission proposes to handle bullying complaints

Application and initial assessment

The worker lodges the application. The application is checked to ensure it is complete and valid, and then served on the employer / principal, and, in most cases, the alleged bullies. Where feasible, contact will be made with the employer / principal. All will be given an opportunity to be heard, before any substantive hearings.

The anti-bullying team gives the Panel Head a report outlining whether the matter involves any potential jurisdictional issues, the nature of the alleged conduct, whether it may be suitable for mediation, factors that might indicate the degree of urgency and other relevant factors that would inform a decision about the assignment of the application.

Those factors are not spelt out, but we would hope that consideration would be given at this stage to whether the worker has utilised internal resolution options, or if any ongoing internal investigation is still to be completed.

The Panel Head then decides if the matter will be assigned to a Member for mediation or determination.


This is confidential and voluntary, and will only be proposed where it is appropriate, having regard to the nature of the parties and the allegations made in the application. The aim will be to resolve the issues so the parties can have constructive and co-operative relationships with each other.


If mediation isn't pursued, or it doesn't resolve the complaint, the complaint will go to hearing (which, unlike mediation, will generally be public).

Generally, the Member will convene a preliminary conference of relevant parties with a view to understanding the issues involved, the position of the parties and the best approach to the matter. Conciliation or mediation could also be pursued at this stage.

Giving feedback to the Fair Work Commission

There is no set date for comments to be submitted, but the Commission has said it would appreciate any initial feedback by mid to late December in time for the start of the new anti-bullying jurisdiction on 1 January 2014.

The Commission acknowledges this is new territory for everyone, and so it will review the new system in July 2014 and again in early 2015.

There has been some disquiet about the possible complexities for employers, including the prospect of dealing with claims lodged by the worker in the Commission and at the state level, or having its own internal investigations cut short.

The Minister for Industrial Relations, Eric Abetz, has also left the door open to legislative reforms, saying earlier this month, "We said there should be a filter for the bullying claims and to the credit of the Fair Work Commission, they are putting in rules and systems that may well provide that filter. Now we are prepared to legislate (but) if the Fair Work Commission can achieve the same outcome by rules and procedures, I will just say well done to them."


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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.