FWC will consider pre-law bullying allegations

Tuesday, 11 March 2014

Workplace incidents that occurred before the new jurisdiction commenced can be considered as evidence in stop-bullying proceedings, the Fair Work Commission has ruled. 

In a significant full bench hearing that sought submissions from the nation's biggest industry groups, the Fair Work Commission rejected arguments by employer Peninsular Support Services and Australian Industry Group that it did not have the jurisdiction to hear cases of bullying that had occurred prior to the laws commencing on 1 January. 

The new anti-bullying powers, provided under Part 6-4B of the Fair Work Act, allow the Commission when it believes there is a risk of future bullying by demanding workplaces have adequate policies and training programs in place and that they appropriately investigate complaints from their staff. 

The test case followed an application by a female employee seeking to prevent what she claimed was bullying by employer PSS over a six-year period from November 2007 to May 2013. She gave no evidence of bullying beyond May 2013. 

PSS, along with Ai Group in its submission, argued parliament had not intended for the new laws to be applied retrospectively. 

But President Justice Iain Ross, Vice President Adam Hatcher and Commissioner Peter Hampton disagreed this was a retrospective application of the laws. The Act aimed to prevent bullying in the future, not punish past acts or compensate for past acts, they argued. 

"The enactment of Part 6-4B does not attach any adverse consequence to past bullying conduct," their judgment said. "Such conduct merely provides the basis for a prospective order to stop future bullying conduct." 

The Full Bench also confirmed there are three requirements that need to be satisfied before the Commission can make an order to stop bullying:
An application needs to be made by a worker who believes he or she has been bullied at work.;
The worker's claims have to be substantiated; and
there needs to be a risk the bullying will continue.

The case means past cases of bullying can be used as evidence in future proceedings. 

"Effectively, this decision allows applicants to make applications based on past conduct and behaviour that they fear will continue in the future," says Athena Koelmeyer, managing director of specialist law firm Workplace Law. 

"Once an applicant demonstrates that they have been bullied at work, the Commission will consider whether there is a risk of ongoing or prospective future bullying. If such a risk is present, the Commission will make an order to stop the bullying." 

It is now up to Commissioner Hampton to determine the remaining issues in the case, including whether there is a risk the employee, who has been on extended sick leave, will be bullied in the future at work. 

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

Source: HR Daily- http://www.hrdaily.com.au/nl06_news_selected.php?act=2&stream=All&selkey=2941&hlc=2&hlw=

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