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Under the anti-bullying jurisdiction of the Fair Work Act 2009 (Cth) (the FW Act), the Fair Work Commission (FWC) has the broad power to make an order (other than monetary payment) that it considers appropriate to prevent a worker from being bullied at work.

The power to make a stop-bullying order is not necessarily limited to matters concerning workers or employees engaged or employed by the same entity – section 789FF of the FW Act only requires that the FWC be satisfied that a worker has been bullied at work by “an individual or group of individuals”.

This means that orders may be made against individuals who have no employment or similar relationship with the applicant, providing that the FWC is satisfied that a worker has been bullied and that there is a risk that the worker will continue to be bullied.

Take, for example, a recent stop-bullying application made by two employees in the decision of Applications by E and J [2023] FWC 364. The Applicants worked for an organisation that owned the management rights to caretake and perform on-site management duties at a multi-residential private gated estate.

The owners of the estate were represented by a Body Corporate Committee (the BCC) responsible for the administration of common property and body corporate assets for the benefit of all owners within the complex.

In January 2023, the Applicants sought stop bullying orders against the BCC and its Treasurer and Acting Chairman, Mr K (collectively, the Respondents).The Applicants relied on six specific matters which they alleged amounted to unreasonable behaviour by Mr K and the BCC which caused a risk to their health and safety.

The Respondents denied all of the allegations, submitting that the actions of Mr K, under the direction of the BCC, were justified, reasonable and did not amount to bullying behaviour.

The FWC determined that, of the conduct alleged, it was unreasonable for Mr K to:

• mock and taunt the Applicants in response to them communicating that they were “living in misery” as a result of the BCC withholding their monthly payments;
• request that the Applicants submit logbooks for fuel use in circumstances where they had not been consulted or advised that the protocol in relation to such had changed;
• withhold approval for the reimbursement of fuel for equipment costs despite the Applicants providing receipts and a full explanation of the costs incurred; and
• change protocol and withhold the Applicant’s reimbursement for the cost of used mower blades despite the BCC confirming payment only a few weeks prior.

The FWC considered the substantiated behaviour of Mr K caused a significant risk to the Applicants’ health and safety, particularly noting how distressed the Applicants were and that one of the Applicants had attempted to end his life as a result of Mr K’s behaviour.

The FWC therefore found that the Applicants had been bullied at work by Mr K and that the BCC were also liable for his actions given his role as Treasurer and acting Chairman.

In considering the possible orders which could be made, the FWC had regard to the history of the matter, including a previous stop bullying application that had been made by the Applicants against the Respondents some six months earlier.

It was noted that the outcome of that initial application had been that the BCC had agreed in private conference to implement proactive measures, such as bullying training and communication protocols, to prevent such alleged behaviour from occurring.

As the BCC had evidently failed to implement those proactive measures, it was more likely than not that Mr K would continue to engage in such conduct.

The FWC therefore considered it appropriate to make interim orders against the Applicants, Mr K and the BCC. The orders were as follows:

• Mr K cease all communication (both verbally and by email) with the Applicants (except to the extent required to comply with the below orders);
• the Applicants, Mr K and the BCC genuinely consult to develop and implement a communications process to ensure that all communication between the parties is reasonable and respectful (the Communication Process);
• the BCC and the Applicants properly and genuinely consult with each other in accordance with the Communications Process in relation to any changes to existing arrangements; and
• the BCC, including those current and new committee members, undergo anti-bullying training.

Lessons for employers

This decision demonstrates the far-reaching power of the FWC to make stop-bullying orders against an individual, or group of individuals, who need not necessarily be engaged or employed by the same entity as the applicant.

In this regard, employers should be mindful of their positive duty to ensure the health and safety of its workers while they are at work and that this may extend to influences outside of the workplace.

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