The Merit Protection Commissioner's 2014-15 annual report, for example, revealed evidence of swearing and aggression in the Australian Public Service, while Comcare claims involving alleged bullying are abundant. With the costs of workers' compensation payments for bullying, harassment and occupational violence approaching $80 million, and almost 40 per cent of Comcare claimants alleging bullying or harassment, this issue should ring alarm bells for APS employers, staff and the public at large.

In 2014, an anti-bullying scheme was created under the Fair Work Act. The relevant legislation had been introduced the previous year in response to a parliamentary inquiry, which had recommended a remedy for bullying victims. As the then employment minister, Bill Shorten, explained in his second-reading speech: "Bullying is a real menace in our workplaces that costs the economy as it damages productivity. Most tragically, it hurts people – sometimes with fatal consequences."

The act now permits certain workers, including public servants, to apply to the Fair Work Commission for a "stop bullying order" against individual colleagues and employers. In society's wider war on bullying, one of the core challenges has been finding a suitable definition. Does not being included in lunchtime activities amount to bullying? Is it being picked on when your football team loses? When does the unpleasant cross over into bullying territory?

To avoid these definitional problems, the anti-bullying provisions are broad – applying to situations where there have been repeated instances of unreasonable behaviour towards the worker that poses a risk to their health and safety. While the definition is broad, and the discretion for the types of orders that can be made is extensive, the anti-bullying scheme has not been the panacea its proponents hoped.

From an employee's perspective, there are several drawbacks to applying for a stop bullying order. First, the 14-day time frame (at minimum) between an application commencing and any orders being made equates to two weeks of risk of increased bullying in retaliation or hostility from the employer for airing dirty laundry in public. Moreover, if the applicant or bully leaves the workplace, either voluntarily or by termination, stop bullying orders become moot. While other avenues for relief may be available (such as seeking compensation for the harm suffered), the anti-bullying jurisdiction evaporates. Academic commentary has also suggested that employers often adopt one of two harmful tactics in response: counter allegations of bullying or misconduct against the applicant, or "tactical" termination of the applicant's employment. More generally, the scheme has certain jurisdictional quirks and numerous claims have failed at this preliminary threshold.

In the event that an aggrieved employee makes an application, and the making thereof does not cause either the employee or bully to leave the organisation, the alleged victim still faces the challenge of proving the conduct in question. Overcoming this evidentiary burden is no easy task, particularly in cases of undocumented verbal bullying.

In light of these hurdles, why would an employee bother with the anti-bullying scheme? Well, these particular provisions of the Fair Work Act are atypical in that they allow employees to bring an action with the aim of remaining employed. The scheme is set up to facilitate ongoing employment rather than mutually agreed separation. While there have been some critiques of the jurisdiction's efficacy in achieving this goal, it remains a primary purpose guiding the Fair Work Commission's approach to cases.

The commission's powers are also far-reaching – extending to whatever non-monetary orders it sees fit. In the past, orders have been made as to when employees can arrive at the workplace, when employees in a dispute can speak to each other, whom employees can email or phone and which employees can approach other employees in the workplace. Of course, such orders can be incredibly disruptive to a workplace, and might not help to improve the victim's working environment.

Despite its faults, the anti-bullying jurisdiction is often better than any alternatives. While the APS code of conduct process should usually be a bullied public servant's first port of call – it feels almost trite to observe that bullying equates to a breach of the code – it can be lengthy and opaque. Additionally, although health and safety regulators have powers to prosecute employers that fail to meet their health and safety obligations, this has proven a weak safeguard in practice. It relies on the regulator bringing the action, and bullying incidents are often overlooked in favour of prosecuting cases of serious workplace injuries and deaths.

Regardless of the specific advantages and disadvantages of the stop bullying order regime, it's less than ideal for employees and employers alike. So it's important that all parties make a concerted effort to avoid bullying before it reaches that stage – prevention is almost always better than a cure. Safe Work Australia recently updated its Guide for Preventing and Responding to Workplace Bullying (which helps employers deal with the risks of workplace bullying) as well as its Dealing with Workplace Bullying – A Worker's Guide (which helps employees who experience bullying, witness bullying or are accused of bullying). These updates have brought the guides into line with existing laws.

Bullying is a scourge of the modern workplace. While the Fair Work Commission's anti-bullying jurisdiction has provided an avenue of relief to bullied employees, more must be done. In the absence of legislative changes to the somewhat defective present scheme, it is incumbent upon APS decision-makers to remain alert to bullying and proactively prevent its occurence.

John Wilson is the managing legal director at Bradley Allen Love Lawyers and an accredited specialist in industrial relations and employment law. He thanks Rebecca Richardson and Kieran Pender for their help in preparing this article. john.wilson@ballawyers.com.au