The Fair Work Commission (FWC) has handed down its judgment in Kathleen McInnes  FWCFB 1440 (6 March 2014), being the first Full Bench consideration of the new anti-bullying provisions in Part 6-4B of the Fair Work Act 2009 (Cth) (FW Act) which commenced operation on 1 January 2014. The decision establishes that alleged bullying conduct which occurred prior to 1 January 2014 can be considered by the FWC in an application for orders to stop bullying under Part 6-4B of the FW Act.
In that case, the applicant alleged she had been bullied over a six-year period, from November 2007 to May 2013, and sought an order to prevent her from being bullied at work. As none of the alleged instances of bullying occurred on or after 1 January 2014 (when the new anti-bullying provisions in the FW Act commenced), one of the respondents raised a jurisdictional objection to the application.
The FWC Full Bench rejected the respondent’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 for an order to stop bullying would not give Part 6-4B retrospective operation. Before the FWC can make an order to stop bullying, among other requirements, the FWC must be satisfied that the worker ‘has been bullied at work’. The FW Act does not attach liability to past events (ie the alleged bullying behaviour); rather, it is about stopping prospective conduct. Considering the past bullying conduct ‘merely provides the basis for a prospective order to stop future bullying conduct’.