Workplace Bullying on Residential Construction Sites

What it is

Workplace bullying is repeated unreasonable behaviour by an individual or group toward a worker that creates a risk to health and safety. The statutory definition sits in section 789FD of the Fair Work Act 2009. A residential builder is exposed to two distinct legal channels for bullying. The first is the Fair Work Commission anti bullying jurisdiction under Part 6-4B of the Act. The second is the work health and safety duty to manage bullying as a psychosocial hazard.

The two channels run in parallel. A worker can apply to the Fair Work Commission for orders without lodging a WHS complaint and the WHS regulator can act without any Fair Work Commission application.

Part 6-4B and the Fair Work Commission

Part 6-4B was inserted into the Fair Work Act 2009 from 1 January 2014. Section 789FC lets a worker who reasonably believes they have been bullied at work apply to the Fair Work Commission for an order to stop bullying. There is no time limit on the application. The Form is F72.

To make an order the Fair Work Commission must be satisfied of two things. First, that the worker has been bullied at work by an individual or a group. Second, that there is a risk the worker will continue to be bullied at work by the individual or group. Both elements have to be met. If the worker has left the workplace the second element is usually not met and the application will fail.

What an order looks like

The Commission can make any order it considers appropriate to prevent the worker from continuing to be bullied. Common orders include requiring an individual to stop specific conduct, requiring an employer to comply with its anti bullying policy, requiring training to be delivered or directing how the parties interact going forward.

The Commission cannot order the payment of money. Compensation is not available in the anti bullying jurisdiction. A worker who wants compensation has to pursue a separate claim, normally under the general protections, the workers compensation system or common law.

Not unfair dismissal

Anti bullying applications are separate from unfair dismissal. Unfair dismissal sits in Part 3-2 of the Fair Work Act 2009 and is only available where the employment has been terminated. Anti bullying sits in Part 6-4B and is only available where the worker is still in the workplace and there is a continuing risk.

A worker who is dismissed in circumstances that include bullying does not file an anti bullying application. They file an unfair dismissal claim or a general protections application. The time limit on those applications is 21 days from the date the dismissal took effect.

For a residential builder this distinction matters. A site supervisor who has bullied an apprentice and then dismissed them cannot be the subject of an anti bullying order after the dismissal because the second statutory element is no longer present.

What is and is not bullying

The statutory definition in section 789FD excludes reasonable management action carried out in a reasonable manner. The Fair Work Commission applies this exception often. Performance management, allocation of work, direction to comply with safety procedures and disciplinary action are all reasonable management actions if they are carried out reasonably. A single incident of unreasonable conduct, even if serious, is not bullying because the definition requires repeated behaviour.

Examples the Commission has accepted as bullying include sustained verbal abuse, persistent exclusion from team activities, targeted unfair work allocation and repeated false complaints. Examples the Commission has rejected as bullying include performance counselling, a lawful direction to wear PPE, a one off heated argument and a redundancy decision.

How it interacts with WHS law

A residential builder has a parallel duty under the model Work Health and Safety Act and the model WHS Regulations to manage bullying as a psychosocial hazard. The 1 April 2023 amendments to the model Regulations on psychosocial risk made this duty more explicit. The PCBU has to identify the hazard, assess the risk, control it through the hierarchy of control and consult workers.

A WHS regulator can issue improvement notices, prohibition notices and prosecute. The Fair Work Commission cannot. The WHS path is slower but carries much heavier consequences. For a small residential builder the realistic risk is a SafeWork inspector attending after a complaint, issuing an improvement notice and following up.

What a residential builder should have in place

The practical controls are modest:

• A short anti bullying and harassment policy that defines bullying using the statutory test and names the people in the business a worker can complain to
• A written complaint procedure that includes a timeframe for the business to respond
• Site induction that covers bullying and includes contact details for the office complaint route
• Training for site supervisors that explains the difference between reasonable management action and bullying
• A consultation forum, even an informal one, that gives workers a chance to raise concerns

The most common failure is the supervisor who does not know the difference between performance management and bullying. The training spend on that one role pays for itself the first time a Fair Work Commission application is avoided.

What to do if an application is filed

The Form F72 is sent to the employer and any named individuals. The Fair Work Commission case manager will normally try conciliation early. A residential builder should respond quickly, take the allegations seriously, gather contemporaneous records and consider an interim measure such as separating the parties on site. Defending the application on the merits without taking any practical step is rarely the best strategy.