The Fair Work Commission’s bullying jurisdiction has now been in operation for about three months. As you would expect, in that time, there have been very few decisions handed down and, as a result, there continues to be some uncertainty amongst employers as to the likely reach of the jurisdiction.
Of the decisions that have been handed down, a couple are worthy of note.
The first concerned an application for a stop bullying order, involving alleged bullying conduct at work over the period November 2007 to May 2013. The respondent employer argued that the Commission lacked jurisdiction to hear and determine the application because it involved conduct which pre-dated 1 January 2014, the date the Commission’s bullying jurisdiction commenced.
Because of the general significance of the jurisdictional issue raised, it was referred to the Full Bench of the Commission for its determination. The Commonwealth and some Peak Industry Councils were invited to make submissions, with the ACTU and Ai Group taking up the offer.
The Full Bench found that while the stop bullying provisions in the Fair Work Act 2009 (Cth) (FW Act) did not operate retrospectively, they contemplated future or prospective action – namely the issuing of a stop bullying order – based on past events. They came to this view in large part because of the use of the past tense in the relevant legislative provisions which permit:
- A ‘worker’ who ‘reasonably believes he or she has been bullied at work’ to make an application for a stop bullying order; and
- The Commission to make a stop bullying order if, among other things, it is satisfied that the ‘worker has been bullied at work…’
As a result, the Full Bench determined that the Commission can have regard to bullying conduct that occurred pre 1 January 2014 when determining whether it can make a stop bullying order under the FW Act.
Having survived this jurisdictional challenge, the application was referred back to Commissioner Hampton by the Full Bench. Ultimately, however, the application was struck out because the respondent employer was found not to be a constitutional corporation (because it was not a trading corporation) such that the Commission lacked the power to make a stop bullying order against it.
The second decision of interest sheds some light on the type of stop bullying orders the Commission may be prepared to make. Senior Deputy President Drake recently made orders by agreement which effectively restrained an alleged bully from engaging in a range of conduct, including from having contact alone with the applicant, from sending emails or texts to the applicant except in emergency circumstances, and from making any comment about the applicant’s clothes and appearance. The orders were made in respect of individuals only and appear to have been designed to limit as much as possible any interactions between them. We envisage much different orders being made where they are directed at the employer, such as orders to refine polices and engage in further training.
Lesson for employers
While the stop bullying jurisdiction is still in its early stages, it is apparent from these decisions that the Commission is prepared to have regard to past conduct – even conduct pre-dating 1 January 2014 – when determining whether it can make a stop bullying order and is willing to make stop bullying orders of broad effect, including to essentially restrain parties from engaging in particular conduct.