See Fair Work Act s.789FF
The Fair Work Commission can make any order it considers appropriate (other than an order requiring a financial payment) to prevent a worker from being bullied at work by an individual or group of individuals.
Before an order can be made, a worker must have made an application for an order to stop bullying and the Commission must be satisfied that:
Where a finding of bullying conduct is made and there is some future risk, preventative orders would be expected to follow. Such orders would, in appropriate cases, establish the appropriate basis for future mutually safe and constructive relationships.
An order to stop bullying is directed at preventing the worker being bullied at work. The Commission is specifically prohibited from making an order requiring the payment of a pecuniary amount, so it cannot make an order requiring a respondent to pay an amount of compensation to an applicant. The anti-bullying laws are not directed at punishing past bullying behaviour or compensating the victims of such behaviour. It is directed at stopping future bullying behaviour.
Section 789FF of the Fair Work Act 2009 (the Fair Work Act) does not expressly state the entities that can be included in any order. However, it is likely that the provision empowers the Commission to make orders directed to applicants, the individuals whose behaviour has led to the application and their respective employer(s)/principal(s).
The orders are directed at the conduct leading to the finding of bullying behaviour and this would mean that the applicant and the individuals concerned could be subject to such an order.
The anti-bullying measures are primarily underpinned by the corporations power (s.789FD(3)). On the basis of the Work Choices Case and previous case law on the corporations power, that power will support regulation of the activities of a corporation and the imposition of obligations upon it, regulation of the conduct of its employees and regulation of others whose conduct is capable of affecting its activities.
The broad scope of the orders is also supported by the fact that a finding of risk to the applicant’s health and safety is required in any finding of bullying and the Explanatory Memorandum clearly contemplates orders being made against the relevant employer/principal(s).
Where the parties agree that orders should be made and the Commission is satisfied that bullying conduct has taken place and that there is a risk of further bullying, consent orders may be issued by the Commission.
The power of the Commission to grant an order is limited to preventing the worker from being bullied at work, and the focus is on resolving the matter and enabling normal working relationships to resume.
The power to make orders is relatively broad and the Commission can made any orders that it considers appropriate (other than an order requiring the payment of a pecuniary amount) to prevent the workers from being bullied. In circumstances where an applicant worker is suffering from a medical condition that prevents a return to the workplace without some appropriate modifications, the Commission would consider including such measures within an order.
The range of orders that the Commission may make (as contemplated by the Explanatory Memorandum) include orders requiring:
Orders will not necessarily be limited or apply only to the employer, but could also apply to others involved. Orders could be based on behaviour such as threats made outside the workplace, if the threats relate to work.
Orders that might be considered by the Commission in an anti-bullying application could deal with specific future conduct of relevant individuals, including the applicant. In addition, orders might be considered that go to the broader conduct within, and culture of, a workplace. These could include the establishment and implementation of appropriate anti-bullying policies, procedures and training, which would include confirming appropriate future conduct and behaviour.
Physical and/or functional separation in the workplace of a person who has alleged that they have been bullied, and those said to have engaged in bullying conduct is self-evidently one way of preventing future bullying, although it may be a last resort where other practical measures will not be effective. A requirement that the employer place the person who has alleged that they have been bullied in an alternative position (or, alternatively, that a person found to have engaged in bullying conduct be redeployed elsewhere) in order to achieve such separation may be a legitimate incident of an order of this nature.
The Commission is given wide powers to make preventative orders it considers appropriate. These powers must be informed by, but not necessarily limited to, the prior unreasonable conduct as found. However, any orders must be directed towards the prevention of the worker being bullied at work in the future by the individual or group concerned, be based upon appropriate findings, and have regard to the considerations established by s.789FF(2) of the Fair Work Act.
Matters dealt with in orders of the Commission have included:
The Commission cannot order reinstatement or the payment of compensation or a pecuniary amount.
An order for payment of a pecuniary amount may be one that requires a financial sum to be paid by one party to another. This can include fines and compensation.
The proposition that any order which potentially requires some monetary expenditure on the part of the employer falls foul of the exclusion in s.789FF(1) of the Fair Work Act must be rejected; were it otherwise, the scope of the power in s.789FF(1) would be narrowed to the extent of substantially defeating its purpose. It would mean, for example, that the types of orders identified in the Explanatory Memorandum might not be able to be made because they would likely have the effect of the employer incurring some monetary cost.
An Order which has the effect of requiring the continuation of the payment of normal wages for work performed in the context of a continuing employment relationship does not fall within the exclusion in s.789FF(1) of the Fair Work Act.
If the worker who makes the application is no longer working at the work site where the bullying conduct occurred, and there is no longer a risk that the worker who made the application will be bullied, the Commission will not be able to make an order under the anti-bullying provisions.
When deciding what should be contained in an order to prevent further bullying behaviour, the Commission must, to the extent that it is aware, take into account:
By taking into account these factors, the Commission can seek to ensure consistency with any action being taken by other bodies (such as WHS state regulators).
A number of different persons and bodies have the power to deal with complaints of workplace bullying. The powers of each person or body and the way in which they deal with bullying complaints differ between organisations, as will the resulting remedies.
A worker who has made an application to the Commission for an order to stop bullying can also seek intervention by a WHS regulator under the WHS Act or the corresponding state or territory work health and safety laws.
WHS regulators may respond to complaints in a number of ways consistent with their own internal policies. Regulators may send inspectors to workplaces to investigate incidents, issuing prohibition or improvement notices, seeking enforceable undertakings or prosecuting alleged offences against work health and safety laws.
Workplace bullying which involves criminal behaviour may also be the subject of a complaint to and investigation by the police.
Any outcomes arising from an investigation by such a person or body, that the Commission is aware of, must be taken into account by the Commission when making orders.
This refers to any internal complaint mechanisms that may be available to the worker to resolve their grievance at the workplace level, without the Commission’s involvement; such as under a work health and safety law or an enterprise agreement or award.
Some workplaces will have policies which contain specific provisions on workplace bullying, such as how it is to be prevented and what action should be taken if it occurs. These may be contained within an enterprise agreement or a code of conduct.
The availability of alternative procedures does not necessarily mean that an application for orders to stop bullying cannot proceed. The new provisions were introduced to address the difficulty many workers face in trying to find a quick way to stop bullying so they do not suffer further harm or injury. The individual right of recourse has been provided for persons who are bullied at work to help resolve the matter quickly and inexpensively.
If there are any other matters that the Commission considers to be relevant to the application, these must also be taken into account. This allows for other issues not specifically contemplated by the legislature to be taken into account where necessary, even though they don’t fall into one of the specific categories listed above.
This may include factors including:
 Fair Work Act s.789FF(1).
 New South Wales v Commonwealth (Work Choices Case)  HCA 52 (14 November 2006), (2006) 229 CLR 1].
 ibid., at para. 178.
 Revised Explanatory Memorandum, Fair Work Amendment Bill 2013 at para. 120.
 Revised Explanatory Memorandum, Fair Work Amendment Bill 2013 at para. 121.
 Revised Explanatory Memorandum, Fair Work Amendment Bill 2013 at para. 119.
 South Eastern Sydney Local Health District v Lal  FWCFB 1475 (Hatcher VP, Sams DP, Hampton C, 7 March 2019) at para. 24.
 Churches and Others v Jackson and Woods  FWCFB 2367 (O’Callaghan SDP, Clancy DP, Hampton C, 14 April 2016) at para 32.
 For examples see Applicant v Company A Pty Ltd; Company B Pty Ltd; and Third Respondent PR555521 (Williams C, 15 September 2014); CF and NW PR569997 (Hampton C, 30 July 2015); Roberts v VIEW Launceston Pty Ltd as trustee for the VIEW Launceston Unit Trust T/A View Launceston and Others PR573139 (Wells DP, 23 October 2015); Bowker and Others v DP World Melbourne Limited T/A DP World and Others PR574247 (Gostencnik DP, 26 November 2015).
 Fair Work Act s.789FF(1).
 South Eastern Sydney Local Health District v Lal  FWCFB 1475 (Hatcher VP, Sams DP, Hampton C, 7 March 2019) at para. 27.
 Fair Work Act s.789FF(2).
 Revised Explanatory Memorandum, Fair Work Amendment Bill 2013 at para. 123.
 Fair Work Act s.789FH.
 Fair Work Act s.789FF(2)(a).
 Revised Explanatory Memorandum, Fair Work Amendment Bill 2013 at para. 88.