Workplace Bullying: Update in light of Governance changes

Preventing workplace bullying and harassment amongst staff members should always be an issue at the forefront of every school principal’s mind. The onerous obligations to protect the safety and wellbeing of staff together with the costly consequences of falling short of those obligations provide strong catalysts for this position. Not only does such bullying behaviour create a risk to worker health and safety, potentially exposing the school to legal liability and workers’ compensation claims, but it can also be cause reputational damage and create a poor culture whereby staff become dissatisfied and unproductive.

There are a range of legal avenues in which a person who has been subjected to workplace bullying can seek protection and redress. We have discussed a number of these avenues, such negligence, unfair dismissal or discrimination and general protections, in previous BLP Briefs.

However, a protection that has not previously been available to staff members of most Catholic schools in Victoria will become available following the implementation of the proposed governance changes across the state. Accordingly, this BLP Brief has been provided to give information on Stop Bullying Orders so that principals are aware of their availability and impacts from 2021.

National Anti-Bullying Laws

The national workplace bulling laws were introduced in January 2014. The anti-bullying provisions of the Fair Work Act 2009 (Cth) (the FW Act) allow a worker who has been bullied at work to apply to the Fair Work Commission (the FWC) for an order to stop the bullying. The relevant provisions give the FWC power to make orders against a workplace to stop bullying and to implement practices and procedures that prevent a worker from being bullied at work.

Stop bullying orders are commonly sought in circumstances where the relevant staff member (victim) is still employed and wants to remain at the school. This is because the FWC can only make such an order where there is a risk that the bullying will continue.

Who does the anti-bullying regime protect?

A worker who reasonably believes that he or she has been bullied at work may apply to the FWC for an order to stop bullying at work. The Fair Work Act definition of a worker is very broad and includes an individual who performs work in any capacity for the relevant organisation. Accordingly, the application of the provisions are broad and an application can be made against a school by an employee, a contractor, a subcontractor, an outworker, an apprentice, a trainee, a student gaining work experience or a volunteer.

Relevantly, a worker can only make an application for a workplace bullying order if they are bullied at work in a ‘constitutionally covered business’. Currently, most Catholic schools in Victoria are not constitutionally covered businesses as the employing authority is not an incorporated entity. However, once the forthcoming governance changes throughout Catholic education in Victoria are implemented, Catholic schools will almost certainly be considered to be constitutionally covered businesses for the purposes of the Fair Work Act. 

As such, it is important that principals understand that stop bullying orders will likely become available to employees of your schools as of next year.

What is bullying?

We have discussed the scope and definition of bullying behaviour in previous BLP Briefs. It is important to know that whilst reasonable management action does not constitute bullying, bullying is broadly defined and can capture a range of conduct provided that the conduct in question is repeated, unreasonable, directed at a worker (or group of workers) and creates a risk to health and safety.

Common examples of bullying behaviour include:
•    Aggressive or intimidating behaviour;
•    Belittling or humiliating comments;
•    Spreading malicious rumours;
•    Teasing, practical jokes or ‘initiation ceremonies’;
•    Exclusion from work-related events;
•    Unreasonable work expectations, including too much or too little work, or work below or beyond a worker’s skill level;
•    Displaying offensive material; and
•    Pressure to behaviour in an inappropriate manner.

In Amie Mac v Bank of Queensland and Others [2015] FWC 774 it was held that some of the features expected to be found in a course of repeated unreasonable behaviour that constituted bullying at work includes: intimidation, coercion, threats, humiliation, shouting, sarcasm, victimisation, terrorising, singling-out, malicious pranks, physical abuse, verbal abuse, emotional abuse, belittling, bad faith, harassment, conspiracy to harm, ganging-up, isolation, freezing-out, ostracism, innuendo, rumour-mongering, disrespect, mobbing, mocking, victim-blaming and discrimination.

What orders can the FWC make?

Where bullying has been found to have occurred, the FWC has extensive powers and broad discretion to make an order to stop bullying. If the FWC is satisfied that the worker has been bullied at work and there is a risk that the worker will continue to be bullied at work, then the FWC may make any order it considers appropriate (other than an order requiring payment of a pecuniary amount) to prevent the worker from being bullied at work, even if that order would be inconvenient or unsuitable to the employer. For example, the FWC may order remedies which involve substantial business costs (e.g. orders to establish anti-bullying policies, procedures and training) or other measures that are logistically difficult for employers (e.g. orders for staff redeployment or no contact orders between relevant parties).


Stop bullying orders can be very expensive for employers, both from a financial perspective and from a cultural and reputational perspective. Most if not all preventative orders will result in some cost to the school, be it, the costs of establishing and implementing appropriate policies, procedures and training or the increased costs of higher staff turnover and mending cultural deficiencies. Also, if a stop bulling order has been made and a person or employer fails to comply with that order, the person or employer may be exposed to financial penalties.

Accordingly, principals and schools should ensure that they take an active approach to matters of bullying and harassment. Appropriate and up-to-date bullying and harassment policies, procedures and training which reflect the latest case law should be the norm in all schools. Neglecting the issue increases the risk and costs of other adverse consequences for a school.

How can Brennan Law Partners assist?

Brennan Law Partners can assist you manage a range of workplace bullying concerns.

It is imperative that all school principals take positive actions to minimise bullying in their schools, including by creating a culture which is both friendly and supportive and discourages and sanctions bullying behaviours. Neglecting this area can have significant adverse effects on stall welfare and morale and make it more likely that the issue will end up at the Fair Work Commission or in other formal legal avenues.

Please contact us if you have any questions regarding workplace bullying or require assistance with developing, updating and implementing bulling and harassment policies, procedures and training.

You can also access Catholic Education Commission of Victoria’s Anti-Bullying Guide for Principals and School Leaders for further information and guidance on this issue.

If you have any questions regarding any information in this BLP Brief, we welcome you to contact us at any time.
This is meant as a guide only and should not be taken as legal advice.

Question? Comment? We’re here to help so talk to us!