On 30 September 2022, the Fair Work Commission (Commission) published its decision to dismiss an application for an order to stop bullying brought by a volunteer of the not-for-profit Down to Earth (Victoria) Co-operative Society Limited (DTE), an entity which organises and funds the annual lifestyle festival “ConFest”, as well as a related event “ConFab”, festivals focused on education and celebration of the arts.

This case is useful for employers to understand what factors or circumstances must be present for the Commission to make an order to stop bullying.

The volunteer brought the application against four individuals, who were all directors of DTE, who he claimed had subjected him to bullying by excluding him from email lists and various subcommittees, by assigning him “impossible tasks” and by interacting with him in a rude manner during meetings. The volunteer claimed he had also witnessed similar behaviours being directed at other volunteers, who had been forced to leave DTE and had experienced a detriment to their mental health. He sought an order from the Commission to prevent such behaviour from continuing.

The Fair Work Act 2009 (Cth) (Fair Work Act) empowers the Commission to make an order to stop bullying if it is satisfied that a worker has been bullied at work and that there is a risk that the worker will continue to be bullied at work. Behaviour towards a worker is considered “bullying” where it is unreasonable, repeated behaviour directed at the worker by an individual or a group of individuals, and it creates a risk to their health and safety. The authority for the Commission to make an order is also subject to the person being a “worker” in a “constitutionally-covered business”.

The respondents to the application objected on the following grounds:

  1. the Commission did not have jurisdiction to make an order, because:

a. the volunteer was not a “worker” within the meaning of the Fair Work Act, as DTE was not conducting a business or undertaking;

b. DTE was not a constitutionally-covered business; and

  1. regarding the merits of the application:

a. the behaviour directed towards the volunteer was reasonable criticism for his own poor behaviour and this did not amount to bullying; and

b. there was no risk of the alleged behaviour continuing because DTE had directed the volunteer to cease volunteering.

The Commission agreed with all of these objections

While the definition of a “worker” includes any person, including a volunteer, who carries out work for a person or entity conducting a business or undertaking, there are important exclusions relating to volunteer associations. The Commission found that DTE was not “conducting a business or undertaking”, as it was a volunteer association comprised of a group of volunteers working together for one or more community purposes, and (crucially) it did not employ anyone. The volunteer argued that DTE engaged the services of people and organised to reward volunteers with non-monetary benefits, but the Commission held that neither of these constitute employment.

Accordingly, the Commission upheld the respondents’ jurisdictional objection and found it did not have authority to make an order to stop bullying. In addition to this finding, the Commission also considered the other objections raised by the respondents, stating that it was “highly unlikely” that DTE was a constitutionally-covered business, as it was not a trading corporation or any other form of constitutionally-covered business. However, the Commission declined to make a definitive determination as to whether DTE is a constitutionally-covered business, as such an exercise requires a close analysis of the revenue and trading activities of the entity and this was unnecessary in circumstances where the volunteer was found not to fall under the meaning of a “worker”.

The Commission further found that, even if it had the authority to make an order, it would have declined to do so for the following reasons:

  • the behavior directed towards the volunteer did not create any risk to his health and safety, and so he was not subjected to bullying;
  • while the volunteer claimed that such a risk was posed to others, this evidence was unreliable, and regardless an application for a stop bullying order is fundamentally concerned with the health and safety of the applicant; and
  • the purpose of an order to stop bullying is to protect the worker from further bullying, and given the volunteer had been directed to cease volunteering with DTE, the possibility of future bullying was distant and speculative.

This decision considered a range of relevant issues relating to anti-bullying applications to the Commission. You can read the full decision here.

Considerations for employers

The case discussed above deals with jurisdictional issues which do not arise in every bullying complaint and most employers are unlikely to succeed at having a stop bullying application withdrawn on the basis that the Commission does not have jurisdiction. However, bullying complaints are a frequent occurrence and employers need to respond appropriately.

Bullying is a term that is often misused and misunderstood in an employment context. Although not all allegations of bullying are substantiated, this case serves as a reminder for employers that bullying complaints should be promptly addressed.

Claims of bullying by employees/workers may not meet the definition in the Fair Work Act (or an employer’s policies) such as where the conduct complained of is not repeated, is not of a sufficient nature or is reasonable management action.

Employers who are managing employee underperformance or poor conduct, may, in response to complaints of bullying argue that any related actions are reasonable management action. Such an argument is likely to be successful if the management action is undertaken in a reasonable manner.

Employers should nonetheless consider investigating complaints of bullying. In situations where there is a risk to health and safety, employers have an obligation to examine the complaints sufficiently to ensure it is meeting its occupational health and safety obligations. Employers who choose not to investigate may increase the risk of a stop bullying application being made.