New anti-bullying provisions of the Fair Work Act 2009 (Cth) (Act) came into effect on 1 January 2014.
In the first Full Bench decision of the Fair Work Commission to consider the new provisions, the Commission has held that alleged bullying conduct that occurred prior to 1 January 2014 may be taken into account by the Commission when determining whether an order to stop bullying should be made.
The matter concerned an application by an employee who alleged that she had been bullied at work over a six year period from November 2007 to May 2013. No instances of bullying had however been complained of since May 2013. The employer filed a jurisdictional objection to the application on the grounds that the Commission could not hear the complaint because the conduct complained of had occurred prior to 1 January 2014.
Having found that conduct prior to 1 January 2014 could be considered by the Commission, the application was remitted for further hearing and determination of the remaining issues. In a decision published on 24 March 2014, the Commission ultimately found that the employer business was not a trading corporation and therefore the Commission did not have jurisdiction to deal with the matter.
The details of the conduct prior to 1 January 2014 were never therefore considered by the Commissioner under the Act.
Nevertheless, the Full Bench decision has set the benchmark for what evidence may be considered in the future by the Commission in other applications.
In another decision of the Commission on 4 March 2014, the Commission has issued its first order to stop bullying in a workplace. The orders were agreed following a conference between the parties. The orders require the employee (the alleged bully) to:
and the complainant:
In parallel with the new bullying legislation, Safe Work Australia (the Commonwealth watchdog) has now published a Guide for preventing and responding to workplace bullying (Bullying Guide).
The Bullying Guide will not have the same legal force as a Code of Practice. It does however set a standard or benchmark which is likely to be referred to in the future by participants in the Commission or possibly the Commission itself. Once the Bullying Guide is finalised, it will still require adoption by each relevant State or Territory.
Lavan Legal comment
The new anti-bullying provisions of the Act are intended to provide a relatively quick and easy mechanism for employees to raise and resolve issues of workplace bullying. Based on the applications made to the Commission in the first few months of the new provisions operating, the main cause of complaints have involved employees alleging they have been bullied by a supervisor or manager after disciplinary action had been taken against the employee.
It is possible that the Commission may not receive the 3,500 claims it anticipated this year. This could be attributed to the fact that the Commission cannot award compensation for bullying conduct or simply that this mechanism remains unknown to a majority of employees.
For further advice about dealing with the Commission’s bullying process or any other employment related matter, please contact Ian Curlewis, Michael Jensen or Alec Weston.