The first substantial order made by the Fair Work Commission was made by Senior Deputy President Drake, on 21 March 2014 in the case noted as (Applicant v Respondent PR548852, Sydney, 21 March 2014).
The names of the parties to the proceedings have not been published and there are no reported details of the background facts; merely a report of the orders made, by consent, following a preliminary conference between the parties. The orders provide an indication of the flexibility available to the FWC in tailoring relief to specific situations, and a glimpse of how a stop bullying order could have real and disruptive impacts on workplaces. The orders were that the employee the subject of the application – the alleged bully:
- Shall complete any exercise at the employer’s premises before 8.00am.
- Shall have no contact with the applicant alone.
- Shall make no comment about the applicant’s clothes or appearance.
- Shall not send any emails or texts to the applicant except in emergency circumstances.
- Shall not raise any work issues without notifying the Chief Operating Officer of the respondent, or his subordinate, beforehand.
Further, the applicant was ordered not to arrive at work before 8.15am each day. The significance of the orders is that a contravention of them could lead to prosecution for substantial civil penalties. The parties were granted leave to have the matter re-listed for a further conference in the event of any difficulty with the implementation of the orders.
This second case clarifies that workers who have been bullied prior to 1 January 2014 can seek orders aimed at preventing the bullying from continuing or reoccurring.
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.
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 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 of Bullying 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.
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 the law ‘operates prospectively in the main based upon past events’.
The Commission 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.