Anti Bullying Orders Will Apply to Bullying Prior to 2014

Posted by Malcolm Campbell on 25 March 2014

On 6 March 2014, in the case of Ms Kathleen McInnes v Peninsula Support Services Inc t/as Peninsula Support Services [2014] FWCFB 1440 (Peninsula Support), the Fair Work Commission (FWC) ruled that they had jurisdiction to hear and determine an application for an anti bullying order which was based on alleged bullying conduct which occurred before 1 January 2014.

Background to Anti Bullying Orders

Part 6-4B (the anti bullying measures) was inserted into the Fair Work Act 2009 (Cth)(the Act) by the Fair Work Amendment Act 2013 (Cth). Section 789FC(1) sets out who may apply to the FWC for an order under section 789FF to prevent a worker from being bullied at work. Section 789FC(1) states "A worker who reasonably believes he or she has been bullied at work may apply to the FWC for an order under section 789FF." 

Schedule 4 to the Act deals with the application and transitional provisions relating to the amendments and Item 8 of that Schedule provides that the anti-bullying provisions apply to applications made after their commencement, 1 January 2014 but the Act is silent on whether an application can be based on bullying behaviour that has occurred prior to the date of commencement.

Peninsula Support (the Respondent) made submissions to the FWC that they had no jurisdiction to hear and determine a claim involving alleged bullying conduct that occurred before the commencement of Part 6-4B of the Act on 1 January 2014.

Decision

The FWC was not persuaded by the Respondent and determined that an application for an Anti Bullying order based on bullying behaviour alleged to have occurred prior to the commencement of Part 6-4B could not be characterised as giving Part 6-4B a retrospective operation. 

The FWC ruled that there are three requirements that must be met before they can consider making an order to stop bullying:

  1. a worker (who reasonably believes they have been bullied at work) must have made an application under s.789FC (hence the jurisdiction cannot be exercised on the FWC’s own motion); and
  2. the FWC must be satisfied that the worker ‘has been bullied at work by an individual or group of individuals’; and
  3. the FWC must be satisfied that there is a risk that the worker will continue to be bullied at work by the individual or group.

The Full Bench reiterated that the second requirement was based on past events and that the enactment of Part 6-4B does not preclude a reliance bullying conduct which occurred before 1 January 2014. The FWC maintained that prior bullying behaviour merely provides the basis for a prospective order to stop future bullying conduct. They confirmed that Part 6-4B of the Act is legislation basing future action on past events rather than legislation providing retrospective operation. Impact of decision

The FWC ruling on anti bullying orders has ramifications for both employers and employees. Previously, members of the FWC staff were advising workers that an application would not be upheld if it was based on conduct that occurred prior to 2014. The FWC ruling changes the goal posts for employers as they cannot raise a jurisdictional objection to have an application for an anti bullying order dismissed if the basis for the application relies on conduct before 2014. In addition, workers who have been bullied at work prior to 2014 are now able to submit applications to the FWC for an anti bullying order with confidence that their complaint will be heard. 

In short, whilst the new anti bullying laws only commenced operation on 1 January 2014 any prior conduct can be relied upon as a basis for a complaint to the FWC.

Should you require further information on the new anti bullying orders please contact us.

Back