The Full Bench of the Fair Work Commission
(FWC) has handed down its first decision in
relation to the anti-bullying provisions to the Fair Work
Act 2009 (Cth) (the Act) which came into
force on 1 January 2014.
The Full Bench had to consider 'bullying' conduct which
occurred before the anti-bullying provisions of the Act came into
force and whether the FWC had jurisdiction to hear such matters.
The Full Bench of the FWC came to the conclusion that it does have
jurisdiction to consider past conduct insofar as it may have a
bearing on whether any future bullying may occur.
On 9 January 2014, Kathleen McInnes1 filed an
application for a stop bullying order. Ms McInnes alleged that she
had been bullied at work from November 2007 to May 2013. Ms McInnes
did not allege that any bullying had occurred after May 2013.
Ms McInnes' employer objected to the application on the
basis that the FWC did not have jurisdiction to hear an
anti-bullying application where the conduct complained of occurred
before the commencement of the anti-bullying provisions of the
The matter was referred to the FWC Full Bench for a decision.
Given the significant implications that this decision would have on
the future application of the anti-bullying legislation, the Full
Bench of the FWC invited submissions from peak industry bodies
including the Australian Industry Group and the Australian Council
of Trade Unions. Both groups filed written submissions and also
made oral submissions.
The Full Bench held that Ms McInnes' application was within
the jurisdiction of the Act as the Act only required that the
application be made after 1 January 2014. The Full Bench of the FWC
also rejected the submission that the laws would be applied
retrospectively if considering previous conduct and ruled that
considering past conduct "merely provides the basis for a
prospective order to stop future bullying conduct". The
remainder of the issues were remitted for determination.
What this means for employers
Employers should be aware that the FWC will consider previous
conduct in applications for a stop bullying order if there is a
risk that the conduct will continue in the future.
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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