“Don’t stand, don’t stand so
Don’t stand so close to me
Don’t stand, don’t stand so
Don’t stand so close to me”
The chorus of the 1980 hit Police song might be the most succinct way of summarising the first set of substantive orders made by the Fair Work Commission (FWC) under the bullying jurisdiction in operation since 1 January 2014.
Whilst the background to the orders made remains confidential, the orders made by consent as an outcome of a conference before Senior Deputy President Lea Drake demonstrate the breadth and specificity of anti-bullying orders that can be made under section 789FF of the Fair Work Act 2009 (Cth).
The FWC can make any order it considers appropriate to prevent a person being bullied at work but anti-bullying orders cannot include the payment of money.
The orders made by the FWC in Applicant v Respondent include orders that the employee the subject of the application complete any work before 8am, and that the Applicant for orders not attend work before 8:15am (presumably to avoid coming into contact). The full orders are available here.
Additionally, the employee the subject of the application was ordered to have no contact with the Applicant alone, make no comment about the Applicant’s clothes or appearance, not send any emails or texts to the Applicant except in emergency circumstances, and not raise any work issues without notifying the Chief Operating Officer of the respondent (or his subordinate) beforehand.
These orders were made by consent and should be viewed in that light. The interaction between the FWC’s power to make anti-bullying orders and other applicable legal rights and obligations is yet to be fully tested.
There may be some limitations on orders of this kind being made as an arbitral outcome of a contested hearing depending on the background facts such as the terms of the employment contracts of each of the Applicant and the Respondent, any restrictions contained in collective agreements concerning when employees are able to work, and other matters.
Orders of this kind will present management challenges for employers required to administer them. To best manage the issues presented by the new anti-bullying jurisdiction, consider our 7 top tips to manage bullying complaints.