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Recent updates on the Fair Work Commission's new anti-bullying jurisdiction

Newsflash 29 April 2014

Since 1 January 2014, the Fair Work Commission (“FWC”) has had the power to intervene in incidents of workplace bullying by making orders prohibiting bullying conduct. An order under Part 6-4B of the Fair Work Act 2009 (Cth) may be available if a “worker” has been bullied at work and there is a risk that the worker will continue to be bullied at work (section 789FF(1)).

Recent decisions have clarified some uncertainty as to the scope of the FWC’s bullying jurisdiction and are discussed below.

1. Are past acts of bullying considered by the FWC?

As the FWC’s bullying jurisdiction commenced on 1 January 2014, there was some uncertainty as to whether bullying conduct that occurred prior to this date could be considered.

Peninsula Support Services (PSS), a named respondent to a bullying application, recently raised a jurisdictional objection to the application on the basis that only post 1 January 2014 bullying conduct could be considered by the FWC. The basis for this objection was that Part 6-4B of the Fair Work Act 2009 commenced on 1 January 2014, whereas the Applicant had alleged she had been bullied over a six year period between 2007 and 2013.

As the jurisdictional objection raised by PSS involved an issue that would lead to a determination as to the scope of the new jurisdiction, the case was referred to the Full Bench of the FWC.

The FWC Full Bench (Justice Ross, Vice President Hatcher and Commissioner Hampton) rejected the jurisdictional objection. While emphasising that anti-bullying orders are to operate prospectively, past behaviour may be taken into account because the legislation is “basing future action on past events” rather than changing past rights and obligations.

The case was remitted to Commissioner Hampton for determination of the substantive issues.

Application by Kathleen McInnes [2014] FWCFB 1440 (6 March 2014)

2. Which workplaces are covered?

For the FWC’s jurisdiction to apply, the bullying conduct must take place in a “constitutionally-covered business”. This is defined under section 789FD of the Fair Work Act 2009 as:

  1. a constitutional (“trading”) corporation;
  2. a Commonwealth authority; or
  3. a body corporate incorporated in a Territory.

PSS argued that it did not fall within the purview of the anti-bullying jurisdiction because it is a not-for-profit provider of free support services to the mentally disabled which generates only minor income.

Commissioner Hampton agreed, noting that PSS’s services lacked the “character of commercial trade in services or elements of exchange or other commercial indicia in the payment” to amount to trading activities. While it was shown to have received grants, sold assets and operated at a surplus, these activities were deemed “insignificant” in the context of PSS’s overall activities.

Having agreed that PSS was not a constitutional corporation over which it had jurisdiction to make orders, the FWC declined to consider whether the alleged bullying had taken place, or whether there was a risk of future bullying.

Ms Kathleen McInnes [2014] FWC 1395 (24 March 2014)

3. How will anti-bullying orders operate?

Senior Deputy President Lea Drake made the first substantive order under the new bullying jurisdiction on 24 March 2014, providing some insight as to the type of bullying orders that may be granted by the FWC.
The worker’s application for an order against a co-worker was granted, with the orders (consented to by the co-worker) prohibiting the co-worker from:

  • contacting the worker alone;
  • commenting on the worker’s clothes or appearance;
  • communicating with the worker via text message or email except in case of an emergency; and
  • raising work-related issues without first notifying the chief operating officer or his subordinate.

The co-worker was also ordered to “complete any exercise” at the employer’s premises before 8:00am. The worker was ordered not to arrive at work before 8:15am.

Applicant v Respondent, PR548852 (21 March 2014)

4. What does this mean for your organisation?

Statistics demonstrate that claims to the FWC are largely made by workers against their direct manager or supervisor. While the anticipated abundance of claims on the commencement of this new jurisdiction has not eventuated, there remains a risk of a claim being lodged by a worker, especially where performance management or disciplinary action is taken.

We encourage all employers to:

  • review policies and procedures regarding workplace behaviour and complaint processes;
  • ensure all managers and supervisors are appropriately trained and supported when required to performance manage or discipline a worker;
  • ensure that any complaint of bullying is fully investigated, having regard to pre and post-1 January 2014 conduct; and
  • ensure that a collaborative approach to bullying is taken across the business.

Please contact our Employment, IR and Workplace Safety team should you require any assistance, or further information.


Peta Tumpey, Partner
Sydney

Keely  Horan, Associate
Sydney

Newsflash 29 April 2014
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