Australia: Past conduct relevant to new anti-bullying legislation

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.

Background

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 Act.

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.

Footnote

¹Kathleen McInnes [2014] FWCFB 1440

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