Yesterday, the Full Bench of the Fair Work Commission handed down a decision of significance with regards to the way that it assesses applications for an order to stop bullying under s.789FC of the Fair Work Act 2009.
An employee lodged an application for an order to prevent her from being bullied at work. The applicant was allegedly subjected to bullying behaviour from November 2007 through to May 2013, though no bullying behaviour has occurred since May 2013.
This decision deals with the jurisdictional objection from the respondent, being that the Commission has no jurisdiction to hear and determine an application involving alleged bullying conduct which occurred prior to 1 January 2014, the date that Part 6-4B commenced
Points of interest:
- Paragraph 7: Reference to ‘is at work’ in s789FD(1) simply provides the context in which the bullying behaviour has taken place. The alleged bullying behaviour must take place prior to the making of an application for an order under s. 789FF.
This was in response to the submission from the respondent that a worker can only be bullied at work from 1 January 2014, when the legal characterisation of ‘bullying’ came into force.
- Paragraph 9: 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.
- Paragraph 11: This means that an application under s.789FC can only be made after the commencement of Schedule 3, but the provision is silent on whether such an application can be based on bullying behaviour that has occurred prior to the date of commencement. It is notable that other parts of Schedule 4 make it clear that certain amendments only apply to conduct after the commencement date.
- The Commission feels that considering the previous alleged bullying conduct that occurred prior to 1 Janaury 2014 is not giving retrospective operation to the legislation. An order s. 789FF operates prospectively based, in part, on past events.
- Paragraph 21: The enactment of Part 6-4B does not attach any adverse consequence to past bullying conduct. Such conduct merely provides the basis for a prospective order to stop future bullying conduct.
What we should take away from this is that employees, when lodging an application, can rely on alleged bullying conduct that occurred prior to 1 January 2014 as part of their application for a prospective order to stop future bullying conduct.
[GARD]Whilst there are still other issues that need to be heard it has been referred to the original commissioner for determination of the remaining issues. That being said, it will be interesting to see how the Commission views this application as there have been no allegations of bullying behaviour since May 2013. Additionally, how the applicant will be able to satisfy to the Commission that there is a risk that they will continue to be bullied at work by the individual or group as required under s. 789FF (ii).
This certainly will be one to watch.