Fair Work Commission hands down landmark ruling on anti-bullying regime

Parliament house flag post

Fair Work Commission hands down landmark ruling on anti-bullying regime

Posted 7/03/2014 by Jaan Murphy

Fair Work Commission hands down landmark ruling on anti-bullying regime

On 6 March 2014, the Fair Work Commission (FWC) ruled that its jurisdiction to hear complaints from workers who allege they are victims of workplace bullying extends to complaints that relate to bullying that occurred prior to the anti-bullying regime coming into force.  

Background

As detailed in a previous flag post, the reforms related to bullying were introduced by the Fair Work Amendment Act 2013, which provided the FWC with jurisdiction to hear complaints from workers covered by the Fair Work Act 2009 (FWA) who allege they are victims of workplace bullying.

On 9 January 2014, Ms Kathleen McInnes filed an application for an order to prevent her from being bullied at work. One of the respondents was Peninsula Support Services (PSS). Ms McInnes alleged that she was subjected to bullying behaviour over a six year period commencing in November 2007 through to May 2013.

PSS raised a number of jurisdictional objections to Ms McInnes application. The key issue was whether the FWC had jurisdiction to hear and determine an application involving alleged bullying conduct which occurred prior to 1 January 2014, which is when the anti-bullying provisions in the FWA commenced.

Given the importance of the case, it was heard before a full bench of the FWC comprised of President Justice Ross, Vice-President Hatcher and Commissioner Hampton. In addition, the Commonwealth, Australian Chamber of Commerce and Industry (ACCI), Australian Industry Group (AIG) and the Australian Council of Trade Unions (ACTU) were invited to make submissions. The AIG and ACTU made submissions, whilst the Commonwealth and ACCI did not.

What were the issues raised in the case?

The central issue in the case was whether the FWC had jurisdiction to hear complaints about bullying that occurred before the commencement of the relevant provisions in the FWA on 1 January 2014.

What arguments were advanced?

The submissions of the PSS and AIG can be summarised as:

  • the FWC had no jurisdiction to hear and determine bullying claims related to conduct that occurred before the commencement of the relevant provisions of the FWA (i.e. before 1 January 2014) and
  • that if the FWC were to hear such claims, it would give the relevant anti-bullying provisions contained in the FWA retrospective operation, contrary to the intention of Parliament.

In support of this view, the PSS argued that the use of present tense in section 789FD (in particular the expression ‘while the worker is at work’) suggested that a worker can only be ‘bullied at work’ from a point in time when that legal characterisation of ‘bullying’ was in force (i.e. after 1 January 2014).

 

What did the FWC decide?

After engaging in a careful and thorough examination of the relevant legislation, the FWC rejected the submission of the PSS and AIG. The FWC noted that the anti-bullying regime:

…operates prospectively and is directed at preventing the worker being bullied at work. The Commission is specifically precluded from making an order requiring the payment of a pecuniary amount, hence it cannot make an order requiring a respondent to pay an amount of compensation to an applicant. The legislative scheme is not directed at punishing past bullying behaviour or compensating the victims of such behaviour. It is directed at stopping future bullying behaviour. (emphasis added).

 

The FWC noted that legislation ‘only operates retrospectively if it provides that rights and obligations are changed with effect prior to the commencement of the legislation’. It further noted that various authorities have drawn a distinction between legislation having a prior effect on past events and ‘legislation basing future action on past events’. In support of this view, the FWC referred to Re a Solicitor’s Clerk [1957] 1 WLR 1219 where Lord Goddard CJ stated (in relation to the legislation in question in that case) that:

This Act simply enables a disqualification to be imposed for the future which in no way affects anything done by the appellant in the past.

As a result, the FWC ruled that the anti-bullying provisions of the FWA were ‘basing future action on past events, and hence [are] not properly characterised as retrospective’.  Put another way, the FWC was of the view that a section 789FF order ‘operates prospectively based, in part, on past events’, which the use of the expression ‘has been’ in that section made clear.

The FWC also rejected the view that if the FWC were to hear such claims, it would give the relevant anti-bullying provisions contained in the FWA retrospective operation as, in its view, the anti-bullying provisions in the FWA ‘[do] not attach any adverse consequence to past bullying conduct. Such conduct merely provides the basis for a prospective order to stop future bullying conduct.’

As a result, the FWC ruled that it did have jurisdiction to hear anti-bullying complaints based on conduct that occurred prior to 1 January 2014, and remitted the matter for determination.

Why is the case important?

The case is important as it clarifies the temporal scope of the anti-bullying jurisdiction conferred on the FWC. From a practical perspective, it also clarifies that workers who have been bullied prior to 1 January 2014 can seek orders aimed at preventing the bullying from continuing or reoccurring.

 


Thank you for your comment. If it does not require moderation, it will appear shortly.

Add your comment

[Click to expand]

We welcome your comments, or additional information which is relevant to a post. These can be added by clicking on the ‘Add your comment’ option above. Please note that the Parliamentary Library will moderate comments, and reserves the right not to publish comments that are inconsistent with the objectives of FlagPost. This includes spam, profanity and personal abuse, as well as comments that are factually incorrect or politically partisan. We will close comments after three months.




Captcha
Generate a new image
Type characters from the image:

Facebook LinkedIn Twitter Add | Email Print

FlagPost

Flagpost is a blog on current issues of interest to members of the Australian Parliament


Parliamentary Library Logo showing Information Analysis & Advice

Archive

Syndication

Tagcloud

Refugees asylum climate change immigration Australian foreign policy parliament social security welfare reform welfare policy elections school education Australian Defence Force health financing higher education emissions trading indigenous Australians women private health insurance people trafficking Employment illicit drugs gambling health reform federal election 2010 Sport Australian Bureau of Statistics statistics United Nations Asia Afghanistan disability income management Middle East Medicare health forced labour Australian Sports Anti-Doping Agency World Anti-Doping Agency United States federal budget Industrial Relations Carbon Pricing Mechanism politics dental health WADA criminal law transport aid child protection environment poker machines Australia in the Asian Century steroids National Disability Insurance Scheme detention aged care 43rd Parliament slavery health system ASADA Law Enforcement Australian Federal Police Fair Work Act Australian Public Service governance labour force people smuggling debt taxation international relations constitution New Zealand food Australian Crime Commission pharmaceutical benefits scheme corruption pensions public service reform children's health Aviation Australian Electoral Commission federal election 2013 foreign debt gross debt net debt defence capability parliamentary procedure Senate Senators and Members ALP Newstart Parenting Payment multiculturalism Youth Allowance sea farers mental health Federal Court terrorist groups science social media Higher Education Loan Program HECS federal state relations accountability Papua New Guinea youth paid parental leave same sex relationships coal seam gas customs planning doping OECD crime health risks International Women's Day Gonski Review of Funding for Schooling sex slavery Special Rapporteur Northern Territory Emergency Response social policy China ADRV terrorism transparency research and development welfare ASIO intelligence community Australian Security Intelligence Organisation carbon tax mining High Court military history electoral reform employer employee renewable energy regional unemployment fishing by-election European Union family assistance skilled migration banking United Nations Security Council Australian economy forestry food labelling vocational education and training Drugs UK Parliament welfare systems Indonesia children Constitutional reform local government codes of conduct terrorist financing homelessness Parliamentary remuneration money laundering Trafficking in Persons Report energy social inclusion human rights paternalism disability employment Tasmania integrity standards NATO Australian Secret Intelligence Service sexual abuse World Trade Organization Australia public health housing affordability bulk billing political parties water productivity health policy Governor-General US economy trade unions domestic violence export liquefied natural gas foreign bribery firearms question time speaker superannuation public housing election results expertise public policy climate Intergovernmental Panel on Climate Change leadership voting Department of Agriculture Fisheries and Forestry regulation Pacific Islands reserved seats new psychoactive substances synthetic drugs UNODC carbon markets animal health middle class welfare Census Indigenous constitutional recognition of local government referendum consumer laws PISA competition policy royal commission US politics violence against women language education baby bonus Leaders of the Opposition citizen engagement policymaking Australia Greens servitude Trafficking Protocol forced marriage Population rural and regional alcohol entitlements ministries Hung Parliament social citizenship maritime Iran ANZUS regional students school chaplains federal budget 2011-12 salary Medicare Locals primary care Building the Education Revolution Fiji India Disability Support Pension Antarctica Diplomacy by-elections state and territories Bills anti-corruption fraud bribery corporate ownership whistleblower G20 economic reform innovation Members of Parliament Scottish referendum early childhood education Middle East; national security; terrorism social services Criminal Code Amendment (Misrepresentation of Age to a Minor) Bill 2013 online grooming sexual assault of minors ACT Assembly national security smoking plain packaging tobacco cigarettes Asia; Japan; international relations Work Health and Safety Migration; asylum seekers; regional processing China; United States; international relations fiscal policy Racial Discrimination Act; social policy; human rights; indigenous Australians Foreign policy Southeast Asia Israel Palestine asylum refugees immigration political finance donations foreign aid Economics efficiency human rights; Racial Discrimination Act employment law bullying asylum seekers Animal law; food copyright Australian Law Reform Commission industry peace keeping contracts workplace policies same-sex marriage disorderly conduct retirement Parliament House standing orders prime ministers election timetable sitting days First speech defence budget submarines workers financial sector Canada Somalia United Kingdom GDP world heritage political engagement leave loading Trade; tariffs; safeguards; Anti-dumping public interest disclosure whistleblowing Productivity Commission limitation period universities Ireland cancer gene patents genetic testing suspension of standing and sessional orders live exports infant mortality honorary citizen railways disciplinary tribunals standard of proof World Health Organisation arts international students skilled graduate visas temporary employment visas apologies roads Italy national heritage NHMRC nutrition anti-dumping Rent Assistance obesity evidence law sacrament of confession US presidential election international days DFAT UN General Assembly deregulation Regulation Impact Statements administrative law small business Breaker Morant regional engagement social determinants of health abortion Members suspension workplace health and safety marine reserves hearing TAFE Victoria astronomy resources sector YMCA youth parliament Korea fuel rebate Australian Greens presidential nomination Racial Discrimination Act political parties preselection solar hot water Financial Action Taskforce Horn of Africa peacekeeping piracy Great Barrier Reef Stronger futures political financing political education Social Inclusion Board early childhood National Quality Framework for Early Childhood Education and Care Murray-Darling Basin sanctions Norway hospitals republic President Barack Obama Presidential visits qantas counselling Korean peninsula Work Choices biosecurity hendra environmental law federalism federation preselection therapeutic goods Therapeutic Goods Administration plebiscites computer games pests suicide nuclear COAG Ministerial Councils floods ADHD stimulant medication advertising electricity extradition conscience votes poverty preventative health rural health coastal erosion Parliamentary Budget Office work-life balance

Show all
Show less
Back to top