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
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
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
There are three requirements for the Commission to hear an
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
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.
Clayton Utz communications are intended to provide
commentary and general information. They should not be relied upon
as legal advice. Formal legal advice should be sought in particular
transactions or on matters of interest arising from this bulletin.
Persons listed may not be admitted in all states and
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
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.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).