Australia: Fair Work Commission sets limits on the reach of the anti-bullying jurisdiction

Last Updated: 15 March 2015
Article by Jennifer Teh
Most Read Contributor in Australia, December 2017

It's been over a year since the anti-bullying regime under the Fair Work Act 2009 (Cth) (FW Act) commenced operation, but to the surprise of many, it's been a slow start.

In the first nine months of 2014, the Fair Work Commission (Commission) received more than 530 applications for orders to stop bullying (Anti-Bullying Orders) but only one of those resulted in Anti-Bullying Orders being made.

Since then, a handful of Anti-Bullying Orders have been made but the number of applications has remained lower than expected. This may be due to a number of reasons, including that there is no financial compensation attached to the Anti-Bullying Orders, that the jurisdiction is not yet widely known and that the Anti-Bullying Orders are premised on there being some form of ongoing relationship between the applicant and the alleged bully.

In this article, we will take you through some important rulings of the Commission over the last year about bullying, including the important decision of the five member Full Bench about what it means to be bullied "at work".

What is "bullying"?

There is a range of behaviour that can constitute bullying, including unjustified criticism, excluding someone from events, making unreasonable work demands, spreading rude or inaccurate rumours, teasing or practical jokes and behaving aggressively. However, this behaviour will only constitute bullying under the FW Act if it is repeated unreasonable behaviour towards a worker that creates a risk to their health and safety.

The Commission has previously given some guidance about what type of conduct will constitute bullying 1. It has said that there needs to be more than one occurrence of unreasonable behaviour over time, but that the same specific behaviour does not need to be repeated. As to whether the behaviour is "unreasonable", this is based on an objective test having regard to all of the surrounding circumstances. The Commission has also stated that there must be a causal link between the unreasonable behaviour and the risk to health and safety.

When is a worker bullied "at work"?

The Commission can only make an Anti-Bullying Order if it is satisfied that "the worker has been bullied at work by an individual or a group of individuals" and there is a risk that the bullying will continue. The FW Act then states that a worker is "bullied at work" if "while the worker is at work", the individual or group repeatedly behaves unreasonably towards the worker (including in a group) which creates a risk to health and safety.

The Commission has recently considered the legal meaning of the expression "while the worker is at work" in the context of an application by three DP World employees to stop bullying 2.

The Full Bench has now confirmed that:

  • A 'worker' is an individual who carries out work in any capacity for a person conducting a business or undertaking. This includes employees (employed by constitutionally covered businesses), contractors or subcontractors, outworkers, apprentices, trainees, work experience students and volunteers.
  • Any individual can engage in the unreasonable behaviour alleged to be bullying, including customers of the business. There is no requirement that they be 'workers' or that they be "at work" when they engage in the unreasonable behaviour.
  • A physical workplace is not necessary to be considered "at work". A worker will be "at work" any time that the worker is performing work, "regardless of his or her location or the time of day", and any other activity which is "authorised or permitted by their employer, or in the case of a contractor their principal". This includes being on a meal break at the workplace or accessing social media while performing work. However, what is meant by this phrase will need to be developed over time on a case by case basis.

The Commission then discussed some examples that were debated during the hearing. Their views were as follows:

  • A worker will generally be "at work" if they receive a call from their manager outside of hours whilst they are at home. However, it will "depend on the context, including custom and practice, and the nature of the worker's contract".
  • If an individual posts bullying comments on Facebook towards a worker, the worker does not need to be "at work" when those posts were made. The unreasonable behaviour "continues for as long as the comments remain on facebook". Therefore, the worker need only access the comments while "at work" in order to enliven the Commission's powers.
  • It is unlikely that a worker is bullied "at work" if they read, whilst at work, a Facebook post by a person with whom they have no relevant workplace connection (e.g. by a former partner). However, the Full Bench avoided giving a concluded view on this example.

Reasonable management action

The FW Act contains a qualification that reasonable management action carried out in a reasonable manner does not constitute bullying. Management action can include performance management processes, performance reviews, counselling or disciplinary action for misconduct and investigating complaints and misconduct. However, it is unlikely to include a spontaneous criticism by a worker's supervisor during a meeting with other colleagues.

Whether the management action is reasonable is a question of fact and depends on an objective assessment of the knowledge of those involved at the time, as well as all of the circumstances that led to the action being taken, that existed while the action was being taken and that flowed from the action, including the emotional state and psychological health of the worker involved. Whilst management actions do not need to be perfect or ideal, at the very least they must be lawful and must not be irrational, absurd or ridiculous 3.

However, reasonable management action can still be bullying if it is not carried out in a reasonable manner. This is again a question of fact and the test is an objective one. Factors that would be considered include the impact of the action on the worker, the way that the action was carried out (e.g. whether the action was consistent with policies and procedures) and the circumstances that led to the action.

In a recent case, the Commission found that the issuing of a warning without first raising specific concerns about performance with the employee and not considering any responses provided by the employee to be unreasonable 4.

In another recent case, the Commission held that a disciplinary process commenced because of an employee's performance issues and which could lead to the employee's dismissal was not reasonable management action, because it was not commensurate with and did not have any logical causal link with the behaviour or performance 5. In this case, the HR Manager had issues with the employee's communication, attitude, ability to follow direction and complaints about his colleague's work practices. However, the Commission was not objectively satisfied that there was conduct or behaviour that warranted disciplinary action as opposed to routine performance management. This was for reasons including that differences of opinion about work practices did not warrant disciplinary action and that the employee was responding effectively to management direction about his performance prior to the disciplinary action being instigated.

Are the Anti-Bullying Orders effective?

In March 2014, the Commission made its first Anti-Bullying Order in the decision of Applicant v Respondent, PR 548842. The consent orders included requiring a male employee not to have any contact with the applicant female employee alone, not to make any comments about the applicant's clothes or appearance, not to send emails or texts to the applicant except in emergency circumstances and not to raise work-related issues with the applicant without first notifying senior management.

The employee was also ordered to complete any exercise at the premises before 8.00am and the applicant was also ordered to arrive at work no earlier than 8.15am. The parties were left with discretion about how to implement these orders in practice but were given the option to relist the matter if they experienced any difficulties. As there was no background or reasoning set out in the decision, it is not clear why this particular application was successful.

In mid December 2014, the order was revoked on the application of the female employee who said that it was in the best interest of everyone for the orders to be lifted in the New Year, due to the "negligible amount of conflict" between herself and her colleague and her feeling comfortable approaching her supervisor. The decision therefore demonstrates how the Anti-Bullying Orders can be effective in managing and restoring workplace relationships.

Wrap up

Although the Commission has now given some guidance on when a worker has been bullied "at work", the parameters of the anti-bullying provisions under the FW Act will continue to evolve, as the Commission foreshadowed. The complexities of bullying in the social media age will no doubt continue to be a challenging area for the Commission.

Whilst the number of bullying applications being lodged is still less than expected, bullying will continue to remain a hot topic in 2015.

It is therefore important for employers to ensure that they have implemented appropriate measures to prevent workplace bullying, including through training and policies. Employers must also ensure that they are prepared to deal with any internal bullying complaints as more workers become aware of their rights under the FW Act. If these complaints are not handled correctly, employers or their workers may be the subject of anti-bullying applications.


1Application by Ms SB [2014] FWC 2104

2 Sharon Bowker, Annette Coombe, Stephen Zwarts v DP World Melbourne Limited, Maritime Union of Australia (Victoria Branch) and others [2014] FWCFB 9227,

3 Application by Ms SB [2014] FWC 2104

4 s789FC application for an order to stop bullying [2014] FWC 6988

5 James Willis v Marie Gibson; Capital Radiology Pty Ltd T?A Capital Radiology; Peita Carroll [2015] FWC 1131

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Jennifer Teh
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions