The new bullying legislation - the first five months

Since the enactment of  Part 6-4B of the Fair Work Act 2009 (Cth)¹ in January 2014 the Fair Work Commission (FWC) has had the power to intervene in incidents of workplace bullying by making orders prohibiting the bullying conduct.  Whilst there has not been the anticipated abundance of bullying claims², the FWC has issued a number of significant decisions and orders, which have clarified some of the uncertainty surrounding the scope and practical application of the new bullying legislation.

Past bullying conduct is admissible

In the matter of Ms Kathleen McInnes³, the FWC Full Bench (FWCFB), found that alleged bullying incidents and conduct which had occurred prior to the introduction of Part 6-4B on 1 January 2014 were matters which could be taken into consideration when assessing an application by an employee for stop bullying orders.

Ms McInnes commenced her application on 9 January 2014, alleging that she had been bullied at work by her fellow staff for a period of six years, between November 2007 to May 2013.  Following which she went on a period of extended sick leave.  Ms McInnes was not currently working when she lodged her application and in her application did not refer to any bullying behaviour subsequent to May 2013.

The employer, Peninsular Support Services, opposed Ms McInnes’ claim arguing that the FWC had no jurisdiction to hear and determine the matter because:

• the alleged bullying conduct which was the subject of the application had occurred before the enactment of Part 6-4B and the new legislation did not operate retrospectively; and alternatively
• the employer was not a constitutional corporation as defined by the Fair Work Act 2009 (Cth) and therefore was not covered by the provisions of Part 6-4B.

As the case dealt with matters of significance with respect to the operation of Part 6-4B it was referred to the FWCFB with submissions invited and received from the ACTU and the Australian Industry Group, as well as the parties.

The FWCFB rejected the employer’s argument that it had no jurisdiction to deal with the application because the alleged bullying conduct had occurred before the enactment of Part 6-4B.  It found that the operation of Part 6-4B was not directed at punishing past bullying behaviour or compensating the victim of such behaviour, rather that the FWC was empowered to make orders under the new legislation that operated prospectively and to be directed at preventing the worker from being bullied at work and were conducive to creating a safe work environment.

Bullying jurisdiction limited to constitutional corporations

Whilst the employer was unsuccessful in arguing the jurisdictional objection based on the date on which the alleged bullying conduct occurred, it did succeed in having the application dismissed on the jurisdictional argument that the employer was not a trading corporation as defined by the Fair Work Act 2009 (Cth). 

The FWCFB found that the support services provided by the employer to the community were provided without charge and that whilst the employer did engage in some trading activities these were peripheral and incidental to the provision of the support services and therefore were not significant.  The result was that the FWCFB determined that it had no jurisdiction to hear the application by Ms McInnes.

Stop bullying orders

In March 2014, Senior Deputy President Drake made the first substantive stop bullying orders in the matter of the Applicant v Respondent⁴ .

The stop bullying orders included:

                 (a)          Directions that the employee:

• have no contact with the co-worker alone;
• make no comment about the co-worker’s clothes or appearance;
• refrain from sending emails or text messages to the co-worker except in an emergency;
• complete any exercise at the employer’s premises before 8.00am;
• raise no work-related issues without first notifying the employer’s chief operating officer or his subordinate; and

                (b)           Directions that the co-worker not arrive at work before 8.15am.

The orders, which were very brief, were made with the consent of the parties following a conference, and do not provide a background to give context to the orders.  However, what these orders clearly illustrate is the nature and wide-ranging scope of stop bullying orders that may be made by the FWC in these types of applications.

How long do the stop bullying orders remain in force?

One issue that remains unresolved is how long will a stop bullying order remain in force.  The new legislation is silent on whether there should be any timeframe or time limits imposed upon such orders and leaves it to the discretion of the FWC member determining the matter.  This raises the question of whether the stop bullying orders remain in force in perpetuity unless there is a specific timeframe imposed.  Further, the failure to impose a timeframe may well in itself be a grounds for appeal or at the very least a request for clarification.  How this will be approached by the FWC remains to be seen.

Lavan Legal’s comment

In the current environment, bullying is probably one of the most significant and under estimated risks the employer faces in the workplace and whilst the anticipated flood of claims expected with the introduction of new jurisdiction has not eventuated, there still remains the very clear risk that a claim may be lodged by a worker, particularly where they are being subject to performance management or disciplinary procedures.

This is not an area that employers can afford to manage reactively.  Employers need to ensure that they are prepared to (and do) act quickly and proactively to prevent or stop alleged bullying in the first place.

By doing so this will allow them to be best placed to avoid all the adverse consequences which flow from a worker feeling bullied and (among a range of other potential options) commencing an application in the FWC to stop the bullying from continuing.