In this In Brief, we examine the Fair Work Commission
(FWC) Full Bench's decision in Application by Kathleen
McInnes  FWCFB 1440 (6 March 2014).
As well as being the first Full Bench consideration of
the FWC's anti-bullying jurisdiction, the decision has given
the new provisions in Part 6-4B of the Fair Work Act 2009 (Cth) (FW
Act) a substantially broader scope of operation than
The decision establishes that alleged bullying conduct
which occurred prior to 1 January 2014, when Part 6-4B came into
effect, can be considered by the FWC in an application for orders
to stop bullying under the provisions.
Ms McInnes sought an order to prevent her from being bullied at
work, naming her employer Peninsula Support Services
(PSS) as one of the respondents. She alleged that
she had been bullied over a six-year period from November 2007 to
As none of the alleged instances of bullying had occurred on or
after 1 January 2014, PSS raised a jurisdictional objection to the
application – i.e. whether the FWC has jurisdiction to deal
with an application involving alleged bullying conduct which took
place prior to the commencement of Part 6-4B.
As the case involved issues of general significance, it was
referred to a Full Bench with submissions invited and received from
the ACTU and Australian Industry Group (Ai Group)
(as well as the parties directly involved).
THE FULL BENCH'S DECISION
The FWC Full Bench (Justice Ross, Vice President Hatcher and
Commissioner Hampton) rejected PSS's jurisdictional argument,
and held that alleged bullying occurring prior to 1 January 2014
could be considered. In reaching this conclusion, the Full Bench
Allowing consideration of pre-1 January 2014 bullying behaviour
in an application under section 789C would not give Part 6-4B
retrospective operation, as suggested by PSS and Ai Group:
"Legislation only operates retrospectively if it provides that
rights and obligations are changed with effect prior to the
commencement of the legislation." ( FWCFB 1440,
As in several authorities referred to by the Full Bench, an
order to stop bullying under section 789FF of the FW Act will
operate prospectively, based partly on past events. Among other
requirements, the FWC would need to be satisfied that a worker
"has been bullied at work" before making such an order.
However: "Part 6-4B does not attach any adverse consequence to
past bullying conduct. [That] conduct merely provides the basis for
a prospective order to stop future bullying conduct." (
FWCFB 1440, )
The reference to a worker being bullied "at work", in
section 789FD, does not restrict Part 6-4B's operation to
instances of bullying at work from 1 January 2014. Even though
bullying conduct prior to that date was not (necessarily) unlawful
at the time, it could nevertheless ground a claim for the FWC to
order that future action be taken to prevent repeated conduct. Part
6-4B is directed at stopping future bullying behaviour, not
punishing past behaviour or compensating bullying victims.
Ms McInnes' claim was remitted to Commissioner Hampton for
further determination of the remaining issues.
WHAT DOES THIS MEAN FOR EMPLOYERS?
So far, the FWC's new anti-bullying jurisdiction has not led
to the flood of claims that was anticipated.
While the Commission expected in the order of 67 bullying claims
per week, only 66 applications were lodged to the end of February
2014. A high proportion of these claims involved employee
allegations of bullying against their supervisors or managers.
Despite these statistics, the risks of potential bullying claims
remain high for employers – and the Full Bench's decision
means that conduct extending some distance into the past can be
subject to review when a worker lodges a claim for orders under
Employers therefore need to proactively manage this issue, by
taking the following steps:
Set rigorous standards for behaviour and review existing
education and training sessions in relation to appropriate conduct
in the workplace.
Support frontline managers so they act reasonably in handling
bullying issues, while at the same time remaining confident when
implementing management actions.
Ensure HR, IR, Occupational Health & Safety and other
related teams communicate with each other and adopt a collaborative
approach to managing the risks.
If a bullying issue is raised or a claim is lodged in the FWC,
be sure to investigate alleged conduct both prior to and from 1
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
Most awarded firm and Australian deal of
Australasian Legal Business Awards
Employer of Choice for
Equal Opportunity for Women
in the Workplace (EOWA)
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).