The Fair Work Commission's anti-bullying powers commenced operation on 1 January 2014. Can it hear complaints based on behaviour that occurred before 1 January 2014?
Yes it can, following a decision by the Full Bench that says it can hear complaints pre-dating 1 January 2014 – and there's no limit on how old an alleged act of bullying can be ( FWCFB 1440).
The application in the new anti-bullying jurisdiction of the Commission
Ms Kathleen McInnes sought an order to prevent her from being bullied at work. She complains that she was subjected to bullying behaviour over a six year period between November 2007 - May 2013 (but not after May 2013).
One of the respondents, Peninsula Support Services Inc t/as Peninsula Support Services, objected that the Commission could not hear her application as the alleged bullying had occurred before the anti-bullying provisions in the Fair Work Act 2009 (Cth) had come into operation; if it did, this would give the provisions a retrospective operation, which was not Parliament's intention.
As this is such an important question, the Full Bench of the Fair Work Commission heard it.
Why the anti-bullying provisions catch pre-1 January 2014 behaviour
There are three requirements for the Commission to hear an anti-bullying application:
- a worker who reasonably believes they have been bullied at work must have made an application under section 789FC; and
- the Commission must be satisfied that the worker has been bullied at work by an individual or group of individuals; and
- the Commission must be satisfied that there is a risk that the worker will continue to be bullied at work by the individual or group.
The Act therefore requires a past event. It doesn't however retrospectively attach adverse consequences to those events (which might or might not have been unlawful at the time). It merely uses those events as a basis for an order to prevent future acts. This doesn't make the Act's operations retrospective.
What employers should do in response
While bullying complaints must of course be based on previous events, there is a problem with complaints reaching too far back, especially if there is no recent bullying complained of. The older the basis of a complaint, the harder it is for the employer to assess and respond to it in the Commission.
It's true of course that an applicant can only get an order if the Commission is satisfied there's a risk of future bullying, but it still has to hear evidence and submissions to get to that point.
Given this, the sensible course for employers is to record every step taken to deal with bullying complaints made by employees and keep those records, no matter how old they are,and take these steps to protect your employees and your organisation from bullying.