As we know, the anti-bullying laws commenced operation on 1 January 2014. Where a worker has been bullied at work – been subject to repeated unreasonable behaviour that creates a risk to health and safety – the Fair Work Commission can make a stop bullying order to prevent future conduct.
So what happens if the worker was bullied at work pre-1 January 2014. Well, the application is without jurisdiction, right? Wrong! Yesterday, the Full Bench of the Fair Work Commission decided that the conduct need not occur post 1 January 2014 to enliven its jurisdiction.
Ms McInnes alleged she had been bullied at work over a six year period from November 2007 to May 2013. On 9 January 2014, she lodged an application for a stop bullying order. None of the alleged conduct post-dated 1 January 2014. Her employer objected to the application on jurisdictional grounds.
Given the significance of the question raised, the matter was referred to the Full Bench of the Fair Work Commission, and it in turn invited submissions from peak industry bodies. The Ai Group and ACTU filed submissions.
Ai Group argued that if pre-1 January 2014 could ground an application, the anti-bullying laws would have retrospective application. In the other corner, the ACTU argued that failure to consider pre-1 January 2014 would defeat the purpose of the legislation, because workers would be forced to endure unnecessary post 1 January 2014 treatment before being eligible to secure a stop bullying order.
The Full Bench found the application was within jurisdiction because the Fair Work Act 2009 (Cth) only required that the application be filed post 1 January 2014, not that the conduct occur post 1 January 2014.
The Full Bench also rejected the submission that the laws had retrospective operation. This is because the legislation “does not attach any adverse consequence to past bullying conduct. Such conduct merely provides the basis for a prospective order to stop future bullying conduct”.
The pool of people eligible to make a claim just got a whole lot bigger. It does remain however that the bullied worker must still be employed. The FWC can only make a stop bullying order where there is a risk that the conduct will continue.