In the first decision to test the scope of the recent anti-bullying amendments to the Fair Work Act 2009 (Cth) (FW Act), which came into effect on 1 January 2014, a Full Bench of the Fair Work Commission (FWC) has found that it has jurisdiction to consider stop-bullying applications which relate to alleged bullying that took place prior to 1 January 2014.

Implications for employers

Employers need to be aware there is no obstacle to an employee relying on alleged acts of bullying which occurred prior to 1 January 2014 when bringing an anti-bullying application before the FWC. Although the FWC can only make an order that bullying stop where it is satisfied that there is a risk of future bullying, in making that assessment the FWC is not restricted to examining conduct that occurred following the commencement of the new laws. Employers should ensure investigations into bullying complaints are undertaken in accordance with an effective complaints procedure, are well documented, and records are retained irrespective of the timing of the complaint.

Background: Law

From 1 January 2014, new Part 6-4B of the FW Act allows a range of workers who reasonably believe they are being bullied to make applications to the FWC for orders that the alleged bullying cease. If the FWC concludes that bullying has occurred and is likely to continue, an order may be made to prevent bullying.

Background: Facts

Kathleen McInnes filed a stop-bullying application on 9 January 2014. Ms McInnes alleged she had been subjected to bullying behaviour over a six year period from November 2007 to May 2013. Ms McInnes did not refer to any alleged instance of bullying occurring after May 2013.

Peninsula Support Services (PSS), one of the respondents to the application, raised various jurisdictional objections. In particular, PSS argued that:

  • the FWC could not hear and determine an anti-bullying application that relied on conduct which occurred prior to the commencement of the new laws on 1 January 2014; and
  • if in fact the FWC did hear such a claim, it would be giving the anti-bullying provisions retrospective operation that was contrary to the intention of Parliament.

Given the significance of the questions raised and potential implications for the operation of the jurisdiction, the matter was referred to a FWC Full Bench. Various peak industry bodies were also invited to make submissions. The Australian Industry Group (Ai Group) and the Australian Council of Trade Unions filed written submissions and made oral submissions.

Decision

The Full Bench (comprised of Justice Ross, Vice President Hatcher and Commissioner Hampton) rejected the arguments of PSS and the Ai Group, holding that:

  • for the FWC to have jurisdiction the only requirement was that the worker “has been” bullied at the time the worker’s application is made;
  • the use of the present tense in the definition of bullying was not material and did not mandate that the bullying conduct needed to have occurred after the commencement of the laws in order to enliven the FWC’s jurisdiction; and
  • the anti-bullying provisions would not have retrospective operation if pre 1 January 2014 conduct was considered. This is because legislation “only operates retrospectively if it provides that rights and obligations are changed with effect prior to the commencement of the legislation”. In the context of the anti-bullying provisions, considering past conduct “merely provides the basis for a prospective order to stop future bullying conduct” and could not be characterised as retrospective because the provisions “[did] not attach any adverse consequences to the past bullying conduct”.

The matter was remitted for determination.

Kathleen McInnes [2014] FWCFB1440