AntibullyingKB

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/*
*About AntibullyingKB
*
*This knowledge-base is based on the Fair Work Commission Benchbook "Anti-bullying"
*https://www.fwc.gov.au/resources/benchbooks/anti-bullying-benchbook
*
*The Fair Work Commission provides information about Anti-bullying
*https://www.fwc.gov.au/disputes-at-work/anti-bullying
*
*The Fair Work Commission provides the database of the Fair Work Commission decisions categorised by keywards such as "bullied at work" or "reasonable management action"
*https://www.fwc.gov.au/cases-decisions-and-orders/decisions-keywords
*
*Under the Fair Work Act 2009 (Cth) a work who has been bullied at work may applies to the Fair Work Commission for an order to stop bullying.
*This KB is drafted to allow the users to navigate the relevant parts of the legislations to find out whether the Fair Work Commission may make an order to stop bullying.
*
*This KB provides the user with the following goals.
*
*1. May the Fair Work Commission make an order to stop bullying?
*The KB will examine whether the Fair Work Commission may make an order to stop bullying from the outset.
*
2. Who is covered by Fair Work Act 2009?
*The KB will examine whether a work is eligible to make an application.
*The Fair Work Commission provides the eligibility quiz.
*https://www.fwc.gov.au/disputes-at-work/anti-bullying/eligibility
*
*3. When is a worker bullied at work?
*The KB will examine whether a worker has been bullied at work under the meaning of the Fair Work Act 2009 (Cth) and thus the Act applies.
*
*4. When can the Fair Work Commission dismiss an application?
*The KB will examine whether the Fair Work Commission can dismiss an application for an order to stop bullying.
*
*Notes
*Disclaimer set out in the Fair Work Commission Benchbook Anti-bulling applies to this KB.
*This KB is not a substitue for independent professional advice.
*/

VERBS

acces~s~ses~sed
beha~ve~ves~ved
belie~ve~ves~ved
carr~y~ies~ied
chan~ge~ges~ged
conduc~t~ts~ted
contro~l~ls~led
crea~te~tes~ted
decla~re~res~red
den~y~ies~ied
direc~t~ts~ted
disclo~se~ses~sed
dismis~s~es~sed
for~m~ms~med
ha~ve~s~d
introdu~ce~ces~ced
investiga~te~tes~ted
lac~k~kes~ked
ma~ke~kes~de
perfor~m~ms~msed
recei~ve~ves~ved
refu~se~ses~sed

PERSON the applicant
PERSONTHING a person conducting a business or undertaking

GOAL RULE Fair Work Act 2009 - section 789FF - may the Fair Work Commission make an order to stop bullying? PROVIDES
the Fair Work Commission may make any order to prevent the applicant from being bullied at work by individual or group ONLY IF
   the applicant is eligible to make an application AND
   the Fair Work Commission may not dismiss an application

GOAL RULE Fair Work Act 2009 - section 789FC - who is covered by Fair Work Act 2009? PROVIDES
the applicant is eligible to make an application ONLY IF
   the applicant is a worker AND
   the applicant reasonably believes that the applicant is bullied at work AND
   the applicant is bullied at work   

RULE Fair Work Act 2009 - section 789FC(2) - worker PROVIDES
the applicant is a worker ONLY IF
   the applicant is not a member of the Defence Force AND
   Fair Work Act 2009 - section 789FJ does not apply AND
   Fair Work Act 2009 - section 789FK does not apply AND
   Fair Work Act 2009 - section 789FL does not apply AND
   the applicant is a worker within the meaning of Work Health and Safety Act 2011 - section 7

RULE Work Health and Safety Act 2011 - section 7 - meaning of worker PROVIDES
the applicant is a worker within the meaning of Work Health and Safety Act 2011 - section 7 ONLY IF
   the applicant is an employee OR
   the applicant is a contractor or subcontractor OR
   the applicant is an employee of a labour hire company who has been assigned to work in the person’s business or undertaking OR
   the applicant is an outworker OR
   the applicant is an apprentice or trainee OR
   the applicant is a student gaining work experience OR
   the applicant is a volunteer (except a volunteer with a volunteer association with no employees) OR
   the applicant is a person of a prescribed class OR
   the applicant is the Commissioner of the Australian Federal Police, a Deputy Commissioner of the Australian Federal Police or an AFP employee OR
   the applicant is a person who is the holder of, or acting in, an office established by a law of the Commonwealth or a law of a Territory (other than the Australian Capital Territory, the Northern Territory or Norfolk Island) OR
   the applicant is a person who constitutes, or is acting as the person constituting, a public authority OR
   the applicant is a person who is, or is acting as, a member or a deputy member of a public authority OR
   the applicant is a person who is, or is acting as, a member or a deputy member of a body established by or under an Act establishing a public authority for a purpose associated with the performance of the functions of the public authority OR
   the applicant is an individual who carries out work in business or undertaking of the applicant OR   
   the applicant carries out work in any capacity for a person conducting a business or undertaking

RULE Fair Work Act 2009 - section 789FJ - exclusion PROVIDES
Fair Work Act 2009 - section 789FJ applies ONLY IF
   the Chief of the Defence Force declared by legislative instrument that all or specified provisions of Fair Work Act 2009 - part 6-4B do not apply in relation to a specified activity

RULE Fair Work Act 2009 - section 789FK - exclusion PROVIDES
Fair Work Act 2009 - section 789FK applies ONLY IF
   the Director-General of Security declared by legislative instrument that all or specified provisions of Fair Work Act 2009 - part 6-4B do not apply in relation to a person carrying out work for the Director-General

RULE Fair Work Act 2009 - section 789FL - exclusion PROVIDES
Fair Work Act 2009 - section 789FL applies ONLY IF
   the Director-General of the Australian Secret Intelligence Service declared by legislative instrument that all or specified provisions of Fair Work Act 2009 - part 6-4B do not apply in relation to a person carrying out work for the Director-General

RULE Fair Work Act 2009 - section 789FC(1) - reasonable belief PROVIDES
the applicant reasonably believes that the applicant is bullied at work ONLY IF
   the applicant believes actually and genuinely that the applicant is bullied at work AND
   there is evidence on an abjective basis to support the belief or other rational basis for the holding of the belief

GOAL RULE Fair Work Act 2009 - section 789FD - when is a worker bullied at work? PROVIDES
the applicant is bullied at work ONLY IF
   Fair Work Act 2009 - section 789FD(1)(a) applies AND
   Fair Work Act 2009 - section 789FD(1)(b) applies AND
   Fair Work Act 2009 - section 789FF(b)(ii) applies AND
   Fair Work Act 2009 - section 789FD(2) does not apply

RULE Fair Work Act 2009 - section 789FD(1)(a) PROVIDES
Fair Work Act 2009 - section 789FD(1)(a) applies ONLY IF
   the applicant is at work in a constitutionally-covered business AND
   there is bullying behaviour AND
   unreasonable behaviour is repeated AND
   the applicant is at work while there is bullying behaviour

RULE Fair Work Act 2009 - section 789FD(3) - constitutionally-covered business PROVIDES
the applicant is at work in a constitutionally-covered business ONLY IF
   a person conducting a business or undertaking conducts a business or undertaking within the meaning of Work Health and Safety Act 2011 - section 5 AND
   BEGIN
   a person conducting a business or undertaking is a constitutional corporation OR
   a person conducting a business or undertaking is the Commonwealth OR
   a person conducting a business or undertaking is Commonwealth authority OR
   a person conducting a business or undertaking is a body corporate incorporated in a Territory OR
   the business or undertaking is conducted principally in a Territory or Commonwealth place
   END

RULE Work Health and Safety Act 2011 - section 5 - person conducting a business or undertaking PROVIDES
a person conducting a business or undertaking conducts a business or undertaking within the meaning of Work Health and Safety Act 2011 - section 5 ONLY IF
   a person conducting a business or undertaking is not a person who engaged solely as a worker in, or as an officer of, that business or undertaking AND
   a person conducting a business or undertaking is not an elected member of a local authority in that capacity conduct a business or undertaking AND
   a person conducting a business or undertaking is not a volunteer association within the meaning of Work Health and Safety Act 2011 - section 5(8) AND
   a person conducting a business or undertaking conducts a business or undertaking within the meaning of Work Health and Safety Act 2011 - section 5(1)

RULE Work Health and Safety Act 2011 - section 5(8) - volunteer association PROVIDES
a person conducting a business or undertaking is a volunteer association within the meaning of Work Health and Safety Act 2011 - section 5(8) ONLY IF
   a person conducting a business or undertaking is a group of volunteers working together for one or more community purposes where none of the volunteers, whether alone or jointly with any other volunteers, employs any person to carry out work for it

RULE Fair Work Act 2009 - section 12 - constitutional corporation PROVIDES
a person conducting a business or undertaking is a constitutional corporation ONLY IF
   a person conducting a business or undertaking is a corporation to which paragraph 51(xx) of the Constitution applies

RULE Commonwealth of Australia Constitution Act - section 51 - constitutional corporation PROVIDES
a person conducting a business or undertaking is a corporation to which paragraph 51(xx) of the Constitution applies ONLY IF
   a person conducting a business or undertaking is a foreign corporation OR
   a person conducting a business or undertaking is a trading corporation or a financial corporation formed within the limits of the Commonwealth

RULE Commonwealth of Australia Constitution Act - section 51 - constitutional corporation - foreign corporation PROVIDES
a person conducting a business or undertaking is a foreign corporation ONLY IF
   a person conducting a business or undertaking is a corporation formed outside of Australia which employs an employee to work in its business in Australia

RULE Commonwealth of Australia Constitution Act - section 51 - constitutional corporation - trading or financial corporation PROVIDES
a person conducting a business or undertaking is a trading corporation or a financial corporation formed within the limits of the Commonwealth ONLY IF
   a person conducting a business or undertaking is a trading corporation formed within the limits of the Commonwealth OR
   a person conducting a business or undertaking is a financial corporation formed within the limits of the Commonwealth

RULE Commonwealth of Australia Constitution Act - section 51 - constitutional corporation - trading or financial corporation - trading corporation PROVIDES
a person conducting a business or undertaking is a trading corporation formed within the limits of the Commonwealth ONLY IF
   a person conducting a business or undertaking is providing goods or services for payment AND
   the trading activity is a sufficiently significant proportion of overall activities of a person conducting a business or undertaking AND
   a person conducting a business or undertaking is formed within the limits of the Commonwealth

RULE Commonwealth of Australia Constitution Act - section 51 - constitutional corporation - trading or financial corporation - financial corporation PROVIDES
a person conducting a business or undertaking is a financial corporation formed within the limits of the Commonwealth ONLY IF
   a person conducting a business or undertaking is a corporation which borrows and lends or otherwise deals in finance as its principal or characteristic activity AND
   the financial activity is a sufficiently significant proportion of the activities of a person conducting a business or undertaking AND
   a person conducting a business or undertaking is formed within the limits of the Commonwealth

RULE Fair Work Act 2009 - section 789FD(3) - constitutionally-covered business - Commonwealth PROVIDES
a person conducting a business or undertaking is the Commonwealth ONLY IF
   a person conducting a business or undertaking is the Commonwealth of Australia represented by Government Department or Commonwealth entity, including a Commonwealth Authority or a body corporate incorporated in a Territory

RULE Fair Work Act 2009 - section 12 - Commonwealth authority PROVIDES
a person conducting a business or undertaking is Commonwealth authority ONLY IF
   a person conducting a business or undertaking is a body corporate established for a public purpose by or under a law of the Commonwealth OR
   BEGIN
   a person conducting a business or undertaking is a body corporate incorporated under a law of the Commonwealth or a State or a Territory AND
   a person conducting a business or undertaking is a body corporate in which the Commonwealth has a controlling interest
   END

RULE Fair Work Act 2009 - section 789FD(3) - constitutionally-covered business - in a Territory or Commonwealth place PROVIDES   
the business or undertaking is conducted principally in a Territory or Commonwealth place ONLY IF
   the business or undertaking is conducted principally in a Territory OR
   the business or undertaking is conducted principally in a Commonwealth place

RULE Fair Work Act 2009 - section 789FD(3) - constitutionally-covered business - in a Territory or Commonwealth place - Commonwealth place PROVIDES   
the business or undertaking is conducted principally in a Commonwealth place ONLY IF
   the business or undertaking is conducted principally in a place acquired by the Commonwealth for public purposes AND
   the business or undertaking is conducted principally in a place other than the seat of government
      
RULE Fair Work Act 2009 - section 789FD(1)(a) - bullying behaviour PROVIDES
there is bullying behaviour ONLY IF
   an individual or a group of individuals behaves unreasonably towards the applicant, or a group of workers of which the applicant is a member

RULE Fair Work Act 2009 - section 789FD(1)(a) - repeated behaviour PROVIDES
unreasonable behaviour is repeated ONLY IF
   there is more than one occurrence

RULE Fair Work Act 2009 - section 789FD(1)(a) - at work PROVIDES
the applicant is at work while there is bullying behaviour ONLY IF
   the applicant is performing work regardless of the physical location of the applicant or the time of day while an individual or a group of individuals behaves unreasonably towards the applicant, or a group of workers of which the applicant is a member OR
   BEGIN
   there is the use of social media to engage in bullying behaviour AND
   the applicant accesses it while the applicant is at work
   END

RULE Fair Work Act 2009 - section 789FD(1)(b) PROVIDES
Fair Work Act 2009 - section 789FD(1)(b) applies ONLY IF
   unreasonable behaviour creates a risk to health and safety

RULE Fair Work Act 2009 - section 789FD(1)(b) - risk to health and safety PROVIDES
unreasonable behaviour creates a risk to health and safety ONLY IF
   there is the possibility of danger to health and safety AND
   there is exposure to the chance of injury or loss which is real and not simply conceptual AND
   unreasonable behaviour is a substantial cause of the risk viewed in a common sense and practical way

RULE Fair Work Act 2009 - section 789FF(b)(ii) PROVIDES
Fair Work Act 2009 - section 789FF(b)(ii) applies ONLY IF
   there is a risk that the applicant will continue to be bullied at work by the individual or group

RULE Fair Work Act 2009 - section 789FF(b)(ii) - likely to continue PROVIDES
IF
   the applicant is not dismissed (or no longer in the employment/contract relationship)
THEN IF
   BEGIN
   there is not change in circumstances AND
   there is a risk that the applicant will continue to be bullied at work by the same individual or group who found to have bullied the applicant
   END
THEN
   there is a risk that the applicant will continue to be bullied at work by the individual or group
ELSE   
   there is not a risk that the applicant will continue to be bullied at work by the individual or group
IF
   the applicant is dismissed (or no longer in the employment/contract relationship)
THEN IF
   BEGIN
   there is the potential to return to the workplace in some capacity as a worker AND
   there is a risk that the applicant will continue to be bullied at work by the same individual or group who found to have bullied the applicant
   END   
THEN   
   there is a risk that the applicant will continue to be bullied at work by the individual or group
ELSE   
   there is not a risk that the applicant will continue to be bullied at work by the individual or group

RULE Fair Work Act 2009 - section 789FF(b)(ii) - likely to continue - change in circumstances PROVIDES
there is change in circumstances ONLY IF
   there is the relocation or dismissal of the person or persons named OR
   there is the relocation of the applicant OR
   there is the introduction of a workplace anti-bullying policy OR
   there is the delivery of anti-bullying or other appropriate training OR
   there is changes to rosters OR
   there is changes to reporting requirements OR
   a person conducting a business or undertaking introduces changes in the workplace to specifically address the issues around the bullying behaviour

RULE Fair Work Act 2009 - section 789FD(2) PROVIDES
Fair Work Act 2009 - section 789FD(2) applies ONLY IF
   the behaviour is reasonable management action carried out in a reasonable manner

GOAL RULE when can the Fair Work Commission dismiss an application? PROVIDES
the Fair Work Commission may dismiss an application ONLY IF
   Fair Work Act 2009 - section 789FE(2) applies OR
   Fair Work Act 2009 - section 587 applies

RULE Fair Work Act 2009 - section 789FE(2) - power to dismiss application PROVIDES
Fair Work Act 2009 - section 789FE(2) applies ONLY IF
   the application of the applicant is an application which might involve matters that relate to Australia's defence OR
   the application of the applicant is an application which might involve matters that relate to Australia's defence Australia's national security OR
   the application of the applicant is an application which might involve matters that relate to an existing or future covert operation (within the meaning of Work Health and Safety Act 2011 - section 12E) of the Australian Federal Police OR
   the application of the applicant is an application which might involve matters that relate to an existing or future international operation (within the meaning of Work Health and Safety Act 2011 - section 12E) of the Australian Federal Police

RULE Fair Work Act 2009 - section 587 - general power to dismiss application PROVIDES
Fair Work Act 2009 - section 587 applies ONLY IF
   the application is not made in accordance with Fair Work Act 2009 and Fair Work Regulations 2009 OR
   the application is frivolous or vexatious OR
   there is not reasonable prospects of success

/* Links */
LINK access it while TO http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FWCFB/2014/9227.html
LINK actually and genuinely TO http://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FWC/2015/774.html
LINK changes to rosters TO http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FWC/2016/763.html
LINK Commonwealth entity, including a Commonwealth Authority or a body corporate incorporated in a Territory TO https://www.finance.gov.au/government/managing-commonwealth-resources/structure-australian-government-public-sector/pgpa-act-flipchart-list
LINK exposure to the chance of injury or loss which is real and not simply conceptual TO http://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FWC/2014/2104.html
LINK frivolous or vexatious TO http://www.airc.gov.au/alldocuments/PR940392.htm
LINK more than one occurrence TO http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FWC/2014/2104.html
LINK providing goods or services for payment TO http://www6.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCA/1978/50.html
LINK reasonable management action carried out in a reasonable manner TO http://www.austlii.edu.au/cgi-bin/sinosrch.cgi?method=phrase&query=reasonable+management+action+carried+out+in+a+reasonable+manner
LINK reasonable prospects of success TO https://www.fwc.gov.au/documents/alldocuments/pr926115.htm
LINK regardless of TO http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FWCFB/2014/9227.html
LINK the introduction of a workplace anti-bullying policy TO http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FWC/2016/763.html
LINK the possibility of danger to health and safety TO http://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWCA/2010/252.html
LINK the potential to return to the workplace in some capacity as a worker TO http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FWC/2014/6988.html
LINK the same individual or group who found to have bullied TO http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FWCFB/2019/2771.html
LINK unreasonably towards TO http://www.austlii.edu.au/cgi-bin/sinosrch.cgi?method=phrase&query=behaves+unreasonably+towards+the+worker
LINK work in any capacity for TO http://www.austlii.edu.au/cgi-bin/sinosrch.cgi?method=phrase&query=work+in+any+capacity+for+a+person+conducting+a+business+or+undertaking
LINK a body corporate established for a public purpose by or under a law of the Commonwealth TO https://www.finance.gov.au/government/managing-commonwealth-resources/structure-australian-government-public-sector/pgpa-act-flipchart-list
LINK a body corporate incorporated under a law of the Commonwealth or a State or a Territory TO https://www.finance.gov.au/government/managing-commonwealth-resources/structure-australian-government-public-sector/pgpa-act-flipchart-list
LINK a business or undertaking within the meaning TO http://www.austlii.edu.au/cgi-bin/sinosrch.cgi?method=phrase&query=conducts+a+business+or+undertaking
LINK a corporation formed outside of Australia which employs an employee to work in its business in Australia TO http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FWA/2010/1589.html
LINK a corporation which borrows and lends or otherwise deals in finance as its principal or characteristic activity TO http://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCA/1978/50.html
LINK a substantial cause of the risk viewed in a common sense and practical way TO http://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWIRComm/2006/339.html
LINK a sufficiently significant proportion of overall activities TO http://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/1979/6.html
LINK a sufficiently significant proportion of the activities TO http://www6.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/1982/72.html

/** This knowledge-base is based on the Fair Work Commission Benchbook "Anti-bullying"* https://www.fwc.gov.au/resources/benchbooks/anti-bullying-benchbook* The Fair Work Commission provides the database of the Fair Work Commission decisions categorised by keywards such as "bullied at work" or "reasonable management action"* https://www.fwc.gov.au/cases-decisions-and-orders/decisions-keywords*/
VERBS
acces~s~ses~sedbeha~ve~ves~vedbelie~ve~ves~vedcarr~y~ies~iedchan~ge~ges~gedconduc~t~ts~tedcontro~l~ls~ledcrea~te~tes~teddecla~re~res~redden~y~ies~ieddirec~t~ts~teddisclo~se~ses~seddismis~s~es~sedfor~m~ms~medha~ve~s~dintrodu~ce~ces~cedinvestiga~te~tes~tedlac~k~kes~kedma~ke~kes~deperfor~m~ms~msedrecei~ve~ves~vedrefu~se~ses~sed
PERSON the applicantPERSONTHING a person conducting a business or undertaking
GOAL RULE Fair Work Act 2009 - section 789FF - may the Fair Work Commission make an order to stop bullying? PROVIDESthe Fair Work Commission may make any order to prevent the applicant from being bullied at work by individual or group ONLY IFthe applicant is eligible to make an application ANDthe Fair Work Commission may not dismiss an application
GOAL RULE Fair Work Act 2009 - section 789FC - who is covered by Fair Work Act 2009? PROVIDESthe applicant is eligible to make an application ONLY IFthe applicant is a worker ANDthe applicant reasonably believes that the applicant is bullied at work ANDthe applicant is bullied at work
RULE Fair Work Act 2009 - section 789FC(2) - worker PROVIDESthe applicant is a worker ONLY IFthe applicant is not a member of the Defence Force ANDFair Work Act 2009 - section 789FJ does not apply ANDFair Work Act 2009 - section 789FK does not apply ANDFair Work Act 2009 - section 789FL does not apply ANDthe applicant is a worker within the meaning of Work Health and Safety Act 2011 - section 7
RULE Work Health and Safety Act 2011 - section 7 - meaning of worker PROVIDESthe applicant is a worker within the meaning of Work Health and Safety Act 2011 - section 7 ONLY IFthe applicant is an employee ORthe applicant is a contractor or subcontractor ORthe applicant is an employee of a labour hire company who has been assigned to work in the person’s business or undertaking ORthe applicant is an outworker ORthe applicant is an apprentice or trainee ORthe applicant is a student gaining work experience ORthe applicant is a volunteer (except a volunteer with a volunteer association with no employees) ORthe applicant is a person of a prescribed class ORthe applicant is the Commissioner of the Australian Federal Police, a Deputy Commissioner of the Australian Federal Police or an AFP employee ORthe applicant is a person who is the holder of, or acting in, an office established by a law of the Commonwealth or a law of a Territory (other than the Australian Capital Territory, the Northern Territory or Norfolk Island) ORthe applicant is a person who constitutes, or is acting as the person constituting, a public authority ORthe applicant is a person who is, or is acting as, a member or a deputy member of a public authority ORthe applicant is a person who is, or is acting as, a member or a deputy member of a body established by or under an Act establishing a public authority for a purpose associated with the performance of the functions of the public authority ORthe applicant is an individual who carries out work in business or undertaking of the applicant ORthe applicant carries out work in any capacity for a person conducting a business or undertaking
RULE Fair Work Act 2009 - section 789FJ - exclusion PROVIDESFair Work Act 2009 - section 789FJ applies ONLY IFthe Chief of the Defence Force declared by legislative instrument that all or specified provisions of Fair Work Act 2009 - part 6-4B do not apply in relation to a specified activity
RULE Fair Work Act 2009 - section 789FK - exclusion PROVIDESFair Work Act 2009 - section 789FK applies ONLY IFthe Director-General of Security declared by legislative instrument that all or specified provisions of Fair Work Act 2009 - part 6-4B do not apply in relation to a person carrying out work for the Director-General
RULE Fair Work Act 2009 - section 789FL - exclusion PROVIDESFair Work Act 2009 - section 789FL applies ONLY IFthe Director-General of the Australian Secret Intelligence Service declared by legislative instrument that all or specified provisions of Fair Work Act 2009 - part 6-4B do not apply in relation to a person carrying out work for the Director-General
RULE Fair Work Act 2009 - section 789FC(1) - reasonable belief PROVIDESthe applicant reasonably believes that the applicant is bullied at work ONLY IFthe applicant believes actually and genuinely that the applicant is bullied at work ANDthere is evidence on an abjective basis to support the belief or other rational basis for the holding of the belief
GOAL RULE Fair Work Act 2009 - section 789FD - when is a worker bullied at work? PROVIDESthe applicant is bullied at work ONLY IFFair Work Act 2009 - section 789FD(1)(a) applies ANDFair Work Act 2009 - section 789FD(1)(b) applies ANDFair Work Act 2009 - section 789FF(b)(ii) applies ANDFair Work Act 2009 - section 789FD(2) does not apply
RULE Fair Work Act 2009 - section 789FD(1)(a) PROVIDESFair Work Act 2009 - section 789FD(1)(a) applies ONLY IFthe applicant is at work in a constitutionally-covered business ANDthere is bullying behaviour ANDunreasonable behaviour is repeated ANDthe applicant is at work while there is bullying behaviour
RULE Fair Work Act 2009 - section 789FD(3) - constitutionally-covered business PROVIDESthe applicant is at work in a constitutionally-covered business ONLY IFa person conducting a business or undertaking conducts a business or undertaking within the meaning of Work Health and Safety Act 2011 - section 5 ANDBEGINa person conducting a business or undertaking is a constitutional corporation ORa person conducting a business or undertaking is the Commonwealth ORa person conducting a business or undertaking is Commonwealth authority ORa person conducting a business or undertaking is a body corporate incorporated in a Territory ORthe business or undertaking is conducted principally in a Territory or Commonwealth placeEND
RULE Work Health and Safety Act 2011 - section 5 - person conducting a business or undertaking PROVIDESa person conducting a business or undertaking conducts a business or undertaking within the meaning of Work Health and Safety Act 2011 - section 5 ONLY IFa person conducting a business or undertaking is not a person who engaged solely as a worker in, or as an officer of, that business or undertaking ANDa person conducting a business or undertaking is not an elected member of a local authority in that capacity conduct a business or undertaking ANDa person conducting a business or undertaking is not a volunteer association within the meaning of Work Health and Safety Act 2011 - section 5(8) ANDa person conducting a business or undertaking conducts a business or undertaking within the meaning of Work Health and Safety Act 2011 - section 5(1)
RULE Work Health and Safety Act 2011 - section 5(8) - volunteer association PROVIDESa person conducting a business or undertaking is a volunteer association within the meaning of Work Health and Safety Act 2011 - section 5(8) ONLY IFa person conducting a business or undertaking is a group of volunteers working together for one or more community purposes where none of the volunteers, whether alone or jointly with any other volunteers, employs any person to carry out work for it
RULE Fair Work Act 2009 - section 12 - constitutional corporation PROVIDESa person conducting a business or undertaking is a constitutional corporation ONLY IFa person conducting a business or undertaking is a corporation to which paragraph 51(xx) of the Constitution applies
RULE Commonwealth of Australia Constitution Act - section 51 - constitutional corporation PROVIDESa person conducting a business or undertaking is a corporation to which paragraph 51(xx) of the Constitution applies ONLY IFa person conducting a business or undertaking is a foreign corporation ORa person conducting a business or undertaking is a trading corporation or a financial corporation formed within the limits of the Commonwealth
RULE Commonwealth of Australia Constitution Act - section 51 - constitutional corporation - foreign corporation PROVIDESa person conducting a business or undertaking is a foreign corporation ONLY IFa person conducting a business or undertaking is a corporation formed outside of Australia which employs an employee to work in its business in Australia
RULE Commonwealth of Australia Constitution Act - section 51 - constitutional corporation - trading or financial corporation PROVIDESa person conducting a business or undertaking is a trading corporation or a financial corporation formed within the limits of the Commonwealth ONLY IFa person conducting a business or undertaking is a trading corporation formed within the limits of the Commonwealth ORa person conducting a business or undertaking is a financial corporation formed within the limits of the Commonwealth
RULE Commonwealth of Australia Constitution Act - section 51 - constitutional corporation - trading or financial corporation - trading corporation PROVIDESa person conducting a business or undertaking is a trading corporation formed within the limits of the Commonwealth ONLY IFa person conducting a business or undertaking is providing goods or services for payment ANDthe trading activity is a sufficiently significant proportion of overall activities of a person conducting a business or undertaking ANDa person conducting a business or undertaking is formed within the limits of the Commonwealth
RULE Commonwealth of Australia Constitution Act - section 51 - constitutional corporation - trading or financial corporation - financial corporation PROVIDESa person conducting a business or undertaking is a financial corporation formed within the limits of the Commonwealth ONLY IFa person conducting a business or undertaking is a corporation which borrows and lends or otherwise deals in finance as its principal or characteristic activity ANDthe financial activity is a sufficiently significant proportion of the activities of a person conducting a business or undertaking ANDa person conducting a business or undertaking is formed within the limits of the Commonwealth
RULE Fair Work Act 2009 - section 789FD(3) - constitutionally-covered business - Commonwealth PROVIDESa person conducting a business or undertaking is the Commonwealth ONLY IFa person conducting a business or undertaking is the Commonwealth of Australia represented by Government Department or Commonwealth entity, including a Commonwealth Authority or a body corporate incorporated in a Territory
RULE Fair Work Act 2009 - section 12 - Commonwealth authority PROVIDESa person conducting a business or undertaking is Commonwealth authority ONLY IFa person conducting a business or undertaking is a body corporate established for a public purpose by or under a law of the Commonwealth ORBEGINa person conducting a business or undertaking is a body corporate incorporated under a law of the Commonwealth or a State or a Territory ANDa person conducting a business or undertaking is a body corporate in which the Commonwealth has a controlling interestEND
RULE Fair Work Act 2009 - section 789FD(3) - constitutionally-covered business - in a Territory or Commonwealth place PROVIDESthe business or undertaking is conducted principally in a Territory or Commonwealth place ONLY IFthe business or undertaking is conducted principally in a Territory ORthe business or undertaking is conducted principally in a Commonwealth place
RULE Fair Work Act 2009 - section 789FD(3) - constitutionally-covered business - in a Territory or Commonwealth place - Commonwealth place PROVIDESthe business or undertaking is conducted principally in a Commonwealth place ONLY IFthe business or undertaking is conducted principally in a place acquired by the Commonwealth for public purposes ANDthe business or undertaking is conducted principally in a place other than the seat of governmentRULE Fair Work Act 2009 - section 789FD(1)(a) - bullying behaviour PROVIDESthere is bullying behaviour ONLY IFan individual or a group of individuals behaves unreasonably towards the applicant, or a group of workers of which the applicant is a member
RULE Fair Work Act 2009 - section 789FD(1)(a) - repeated behaviour PROVIDESunreasonable behaviour is repeated ONLY IFthere is more than one occurrence
RULE Fair Work Act 2009 - section 789FD(1)(a) - at work PROVIDESthe applicant is at work while there is bullying behaviour ONLY IFthe applicant is performing work regardless of the physical location of the applicant or the time of day while an individual or a group of individuals behaves unreasonably towards the applicant, or a group of workers of which the applicant is a member ORBEGINthere is the use of social media to engage in bullying behaviour ANDthe applicant accesses it while the applicant is at workEND
RULE Fair Work Act 2009 - section 789FD(1)(b) PROVIDESFair Work Act 2009 - section 789FD(1)(b) applies ONLY IFunreasonable behaviour creates a risk to health and safety
RULE Fair Work Act 2009 - section 789FD(1)(b) - risk to health and safety PROVIDESunreasonable behaviour creates a risk to health and safety ONLY IFthere is the possibility of danger to health and safety ANDthere is exposure to the chance of injury or loss which is real and not simply conceptual ANDunreasonable behaviour is a substantial cause of the risk viewed in a common sense and practical way
RULE Fair Work Act 2009 - section 789FF(b)(ii) PROVIDESFair Work Act 2009 - section 789FF(b)(ii) applies ONLY IFthere is a risk that the applicant will continue to be bullied at work by the individual or group
RULE Fair Work Act 2009 - section 789FF(b)(ii) - likely to continue PROVIDESIFthe applicant is not dismissed (or no longer in the employment/contract relationship)THEN IFBEGINthere is not change in circumstances ANDthere is a risk that the applicant will continue to be bullied at work by the same individual or group who found to have bullied the applicantENDTHENthere is a risk that the applicant will continue to be bullied at work by the individual or groupELSEthere is not a risk that the applicant will continue to be bullied at work by the individual or groupIFthe applicant is dismissed (or no longer in the employment/contract relationship)THEN IFBEGINthere is the potential to return to the workplace in some capacity as a worker ANDthere is a risk that the applicant will continue to be bullied at work by the same individual or group who found to have bullied the applicantENDTHENthere is a risk that the applicant will continue to be bullied at work by the individual or groupELSEthere is not a risk that the applicant will continue to be bullied at work by the individual or group
RULE Fair Work Act 2009 - section 789FF(b)(ii) - likely to continue - change in circumstances PROVIDESthere is change in circumstances ONLY IFthere is the relocation or dismissal of the person or persons named ORthere is the relocation of the applicant ORthere is the introduction of a workplace anti-bullying policy ORthere is the delivery of anti-bullying or other appropriate training ORthere is changes to rosters ORthere is changes to reporting requirements ORa person conducting a business or undertaking introduces changes in the workplace to specifically address the issues around the bullying behaviour
RULE Fair Work Act 2009 - section 789FD(2) PROVIDESFair Work Act 2009 - section 789FD(2) applies ONLY IFthe behaviour is reasonable management action carried out in a reasonable manner
GOAL RULE when can the Fair Work Commission dismiss an application? PROVIDESthe Fair Work Commission may dismiss an application ONLY IFFair Work Act 2009 - section 789FE(2) applies ORFair Work Act 2009 - section 587 applies
RULE Fair Work Act 2009 - section 789FE(2) - power to dismiss application PROVIDESFair Work Act 2009 - section 789FE(2) applies ONLY IFthe application of the applicant is an application which might involve matters that relate to Australia's defence ORthe application of the applicant is an application which might involve matters that relate to Australia's defence Australia's national security ORthe application of the applicant is an application which might involve matters that relate to an existing or future covert operation (within the meaning of Work Health and Safety Act 2011 - section 12E) of the Australian Federal Police ORthe application of the applicant is an application which might involve matters that relate to an existing or future international operation (within the meaning of Work Health and Safety Act 2011 - section 12E) of the Australian Federal Police
RULE Fair Work Act 2009 - section 587 - general power to dismiss application PROVIDESFair Work Act 2009 - section 587 applies ONLY IFthe application is not made in accordance with Fair Work Act 2009 and Fair Work Regulations 2009 ORthe application is frivolous or vexatious ORthere is not reasonable prospects of success
/* Links */LINK access it while TO http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FWCFB/2014/9227.htmlLINK actually and genuinely TO http://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FWC/2015/774.htmlLINK changes to rosters TO http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FWC/2016/763.htmlLINK Commonwealth entity, including a Commonwealth Authority or a body corporate incorporated in a Territory TO https://www.finance.gov.au/government/managing-commonwealth-resources/structure-australian-government-public-sector/pgpa-act-flipchart-listLINK exposure to the chance of injury or loss which is real and not simply conceptual TO http://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FWC/2014/2104.htmlLINK frivolous or vexatious TO http://www.airc.gov.au/alldocuments/PR940392.htmLINK more than one occurrence TO http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FWC/2014/2104.htmlLINK providing goods or services for payment TO http://www6.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCA/1978/50.htmlLINK reasonable management action carried out in a reasonable manner TO http://www.austlii.edu.au/cgi-bin/sinosrch.cgi?method=phrase&query=reasonable+management+action+carried+out+in+a+reasonable+mannerLINK reasonable prospects of success TO https://www.fwc.gov.au/documents/alldocuments/pr926115.htmLINK regardless of TO http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FWCFB/2014/9227.htmlLINK the introduction of a workplace anti-bullying policy TO http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FWC/2016/763.htmlLINK the possibility of danger to health and safety TO http://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWCA/2010/252.htmlLINK the potential to return to the workplace in some capacity as a worker TO http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FWC/2014/6988.htmlLINK the same individual or group who found to have bullied TO http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FWCFB/2019/2771.htmlLINK unreasonably towards TO http://www.austlii.edu.au/cgi-bin/sinosrch.cgi?method=phrase&query=behaves+unreasonably+towards+the+workerLINK work in any capacity for TO http://www.austlii.edu.au/cgi-bin/sinosrch.cgi?method=phrase&query=work+in+any+capacity+for+a+person+conducting+a+business+or+undertakingLINK a body corporate established for a public purpose by or under a law of the Commonwealth TO https://www.finance.gov.au/government/managing-commonwealth-resources/structure-australian-government-public-sector/pgpa-act-flipchart-listLINK a body corporate incorporated under a law of the Commonwealth or a State or a Territory TO https://www.finance.gov.au/government/managing-commonwealth-resources/structure-australian-government-public-sector/pgpa-act-flipchart-listLINK a business or undertaking within the meaning TO http://www.austlii.edu.au/cgi-bin/sinosrch.cgi?method=phrase&query=conducts+a+business+or+undertakingLINK a corporation formed outside of Australia which employs an employee to work in its business in Australia TO http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FWA/2010/1589.htmlLINK a corporation which borrows and lends or otherwise deals in finance as its principal or characteristic activity TO http://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCA/1978/50.htmlLINK a substantial cause of the risk viewed in a common sense and practical way TO http://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWIRComm/2006/339.htmlLINK a sufficiently significant proportion of overall activities TO http://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/1979/6.htmlLINK a sufficiently significant proportion of the activities TO http://www6.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/1982/72.html