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
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.
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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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