Australia: Stop that! Fair Work Commission makes second stop bullying order

Clayton Utz Insights

Key Points:

The Fair Work Commission's power is broad and is, to some extent, an exercise in creative problem-solving and people management, so employers should ensure that they take an active approach to bullying and harassment.

Since the anti-bullying provisions in the Fair Work Act 2009 (Cth) were introduced on 1 January 2014, there has been much speculation about the specific orders that the Fair Work Commission might make to stop and prevent a worker from being bullied at work. While there has been a large number of applications to the Commission (as at 31 March 2015, it had received some 874 applications) and the provisions have had a significant cultural impact on awareness of bullying, there are few cases where orders have been made.

The notion of bullying is a familiar one in workplace relations law but the Fair Work Act's anti-bullying regime is novel in that it gives the Commission power to in effect, regulate the inner workings of a workplace, which could entail business costs, interfere with individual liberty and potentially represent a significant incursion into managerial prerogative. The decision in CF v Company A [2015] FWL 5272, the Commission's second stop-bullying order 1, is therefore important guidance.

The bullying complaint in CF v Company A

The facts of the case are quite brief. The applicants, CF and NW (the FWC's decision does not identify any of the relevant parties) were employees of a relatively small real estate business, Company A. They alleged bullying by Ms ED, who was employed as Property Manager.

A finding that bullying has occurred is one of the two threshold requirements for the exercise of the jurisdiction to make a preventative order. Under section 789FD of the FW Act, bullying is defined as when:

  • a worker behaves unreasonably towards another worker or group of workers; and
  • the behaviour creates a risk to health and safety.

On the facts, Ms ED's conduct was alleged to include:

  • belittling conduct;
  • swearing, yelling and use of otherwise inappropriate language;
  • daily interfering and undermining the applicants' work;
  • physical intimidation and slamming of objects on the applicants' desks;
  • attempts to incite the applicants to victimise other staff members; and
  • threats of violence.

Initially, the applicants reported their concerns about ED's behaviour to the employer's management. An informal investigation was conducted which reached inconclusive findings.

At hearing, the employer initially asserted that the applicants themselves had acted unreasonably in certain respects and relied upon the fact that Ms ED had denied some of the allegations. However, ultimately, the employer conceded that, notwithstanding these counter-arguments, the evidence established that Ms ED had bullied the applicants. The employer also conceded that Ms ED's conduct may have created a risk to health and safety.

The second threshold requirement to exercise of the FWC's power is a finding that "there is a risk that the worker will continue to be bullied at work".

The facts of the matter were somewhat unusual in that following the employer's investigation, Ms ED had resigned her employment to take up new employment with a related corporation. This operated from different premises. In addition, both CF and NW had ceased attending the workplace and had lodged claims for worker's compensation.

Despite Ms ED's new employment, the fact that she remained employed within the same corporate group and importantly, that she was seconded back to her former employer, gave rise to a risk of further harmful interaction between her and the applicants.

Accordingly, the Commission was satisfied of a risk of continued bullying.

The remaining issue was what order ought to be made in the circumstances so as to prevent the alleged bullying in future.

What sort of anti-bullying order is appropriate in this case?

Section 789FF(1) of FW Act gives the Fair Work Commission a power, where the threshold requirements are met, to "make any order it considers appropriate (other than an order requiring payment of a pecuniary amount) to prevent the worker from being bullied at work".

The Act is silent as to the kinds of orders to be made, so it confers great latitude upon the Commission.

In the circumstances, the Commission made orders lasting 24 months:

  1. that the applicants and Ms ED not approach each other and that they not attend each other's premises.
  2. The FWC conceded that an order of this kind might not be appropriate in some cases, such as where the employer operates from a single premises, because it would be difficult to co-ordinate the movement of employees so as to prevent one approaching the other.

    However, in this case, Ms ED was no longer based at the same location as the applicants, making an order in these terms suitable; and

  1. that the employer:
    1. establish and implement appropriate anti-bullying policies, procedures and training, to (amongst other things) confirm "appropriate future conduct and behaviour"; and
    2. clarify reporting arrangements.
    3. In contrast to the first order, the second was directed at the employer rather than the individual employees. Order two aimed to cultivate a culture within the workplace at large, to discourage and sanction bullying.

Ultimately, both orders had the consent of all parties.

Anti-bullying orders: prevention is better than cure

As can be seen, the Fair Work Commission's power is broad and is, to some extent, an exercise in creative problem-solving and people management. Unavoidably, most if not all preventative orders are likely to entail some cost to the business: in this case, the costs of establishing and implementing appropriate policies, procedures and training require some financial outlay.

Employers should ensure that they take an active approach to matters such as bullying and harassment. Appropriate and up-to-date bullying and harassment policies, procedures and training which reflect the latest case law should be the norm in all organisations. At the very least, this will ensure that employers can retain control over the issue in their workplace, as well as mitigating the pernicious effect bullying can have on employee welfare, dignity and morale.

Neglecting the issue could make it more likely that the matter will pass into the hands of the Fair Work Commission, which brings with it the prospect of an imposed solution, rather than one arrived at by the employer itself, in accordance with its own policies and procedures.

Bullying matters also carry with them the risk of reputational damage to the employer. This is all the more reason to have in place mechanisms to effectively deal with them before they evolve into public, contested hearings with damaging dirty laundry aired for all to see.

You might also be interested in...


1The first decision of its kind, Applicant v Respondent (AB2014/1052), resulted in the Commission making orders by consent of the parties.

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 bulletin. Persons listed may not be admitted in all states and territories.

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.

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
Check to state you have read and
agree to our Terms and Conditions

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.

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 by clicking here .

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.


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.