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FWC’s anti-bullying jurisdiction: Past conduct is relevant

Submitted By Firm: Corrs Chambers Westgarth

Contact(s): John Tuck

Author(s):

Partner, Janine Young and Special Counsel, Jane Hall

Date Published: 3/16/2014

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In this In Brief, we examine the Fair Work Commission (FWC) Full Bench’s decision in Application by Kathleen McInnes [2014] FWCFB 1440 (6 March 2014).

As well as being the first Full Bench consideration of the FWC’s anti-bullying jurisdiction, the decision has given the new provisions in Part 6-4B of the Fair Work Act 2009 (Cth) (FW Act) a substantially broader scope of operation than anticipated.

The decision establishes that alleged bullying conduct which occurred prior to 1 January 2014, when Part 6-4B came into effect, can be considered by the FWC in an application for orders to stop bullying under the provisions.

Background

Ms McInnes sought an order to prevent her from being bullied at work, naming her employer Peninsula Support Services (PSS) as one of the respondents. She alleged that she had been bullied over a six-year period from November 2007 to May 2013.

As none of the alleged instances of bullying had occurred on or after 1 January 2014, PSS raised a jurisdictional objection to the application – i.e. whether the FWC has jurisdiction to deal with an application involving alleged bullying conduct which took place prior to the commencement of Part 6-4B.

As the case involved issues of general significance, it was referred to a Full Bench with submissions invited and received from the ACTU and Australian Industry Group (Ai Group) (as well as the parties directly involved).

The Full Bench’s Decision

The FWC Full Bench (Justice Ross, Vice President Hatcher and Commissioner Hampton) rejected PSS’s jurisdictional argument, and held that alleged bullying occurring prior to 1 January 2014 could be considered. In reaching this conclusion, the Full Bench found that:

  • Allowing consideration of pre-1 January 2014 bullying behaviour in an application under section 789C would not give Part 6-4B retrospective operation, as suggested by PSS and Ai Group: “Legislation only operates retrospectively if it provides that rights and obligations are changed with effect prior to the commencement of the legislation.” ([2014] FWCFB 1440, [13])
  • As in several authorities referred to by the Full Bench, an order to stop bullying under section 789FF of the FW Act will operate prospectively, based partly on past events. Among other requirements, the FWC would need to be satisfied that a worker “has been bullied at work” before making such an order. However: “Part 6-4B does not attach any adverse consequence to past bullying conduct. [That] conduct merely provides the basis for a prospective order to stop future bullying conduct.” ([2014] FWCFB 1440, [21])
  • The reference to a worker being bullied “at work”, in section 789FD, does not restrict Part 6-4B’s operation to instances of bullying at work from 1 January 2014. Even though bullying conduct prior to that date was not (necessarily) unlawful at the time, it could nevertheless ground a claim for the FWC to order that future action be taken to prevent repeated conduct. Part 6-4B is directed at stopping future bullying behaviour, not punishing past behaviour or compensating bullying victims.

Ms McInnes’ claim was remitted to Commissioner Hampton for further determination of the remaining issues.

What does this mean for employers?

So far, the FWC’s new anti-bullying jurisdiction has not led to the flood of claims that was anticipated.

While the Commission expected in the order of 67 bullying claims per week, only 66 applications were lodged to the end of February 2014. A high proportion of these claims involved employee allegations of bullying against their supervisors or managers.

Despite these statistics, the risks of potential bullying claims remain high for employers – and the Full Bench’s decision means that conduct extending some distance into the past can be subject to review when a worker lodges a claim for orders under Part 6-4B.

Employers therefore need to proactively manage this issue, by taking the following steps:

  • Set rigorous standards for behaviour and review existing education and training sessions in relation to appropriate conduct in the workplace.
  • Support frontline managers so they act reasonably in handling bullying issues, while at the same time remaining confident when implementing management actions.
  • Ensure HR, IR, Occupational Health & Safety and other related teams communicate with each other and adopt a collaborative approach to managing the risks.
  • If a bullying issue is raised or a claim is lodged in the FWC, be sure to investigate alleged conduct both prior to and from 1 January 2014.

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