The Fair Work Commission's anti-bullying powers came into
force on 1 January 2014 (see our previous update
here). In a recent decision (
Application by Kathleen McInnes  FWCFB 1440), the Full
Bench of the Commission has found that the new laws can apply to
bullying that occurred before 1 January 2014.
On 9 January 2014, Ms Kathleen McInnes applied to the Commission
for an order to prevent her from being bullied at work. The
bullying in question occurred over a six-year period from November
2007 to May 2013. Importantly, Ms McInnes did not claim that she
had been bullied after May 2013.
One of the respondents, Peninsula Support Services
("PSS"), objected to the application on the basis that
the Commission was not empowered to deal with bullying that
occurred before the anti-bullying laws came into effect. Allowing
the application to proceed, PSS argued, would give the new
provisions retrospective operation.
Under the anti-bullying provisions, the Commission can hear an
application to stop bullying so long as it is satisfied that:
the worker has been bullied at work by one or more individuals;
there is a risk that the worker will continue to be bullied at
The Commission rejected PSS's argument, finding that the new
provisions did not prevent it from considering bullying that
occurred prior to 1 January 2014.
The Commission explained that the new provisions were not
directed at punishing past conduct, but rather at preventing future
bullying behaviour. This is demonstrated, for example, by the
Commission being specifically precluded from making an order
requiring an employer to pay compensation to a bullied employee.
Instead, the Commission can only make an order that any future
Because of this focus on preventing future conduct, the
Commission found that the anti-bullying provisions did not operate
retrospectively and could capture bullying that occurred before 1
WHAT THIS MEANS FOR EMPLOYERS
Employees can seek a bullying order in relation to alleged
bullying incidents that occurred in 2013 and earlier. This means
the potential for bullying claims is broader. In the short term, it
may lead to increased claims by employees who may have believed
they were precluded from making claims for pre 1 January 2014
This publication is intended as a general overview and
discussion of the subjects dealt with. It is not intended to be,
and should not used as, a substitute for taking legal advice in any
specific situation. DLA Piper Australia will accept no
responsibility for any actions taken or not taken on the basis of
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operating through various separate and distinct legal entities. For
further information, please refer to www.dlapiper.com
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