In this In Brief, we examine the Fair Work Commission (FWC) Full Bench’s decision in Application by Kathleen McInnes  FWCFB 1440 (6 March 2014).
As well as being the first Full Bench consideration of the FWC’s anti-bullying jurisdiction, the decision has given the new provisions in Part 6-4B of the Fair Work Act 2009 (Cth) (FW Act) a substantially broader scope of operation than anticipated.
The decision establishes that alleged bullying conduct which occurred prior to 1 January 2014, when Part 6-4B came into effect, can be considered by the FWC in an application for orders to stop bullying under the provisions.
Ms McInnes sought an order to prevent her from being bullied at work, naming her employer Peninsula Support Services (PSS) as one of the respondents. She alleged that she had been bullied over a six-year period from November 2007 to May 2013.
As none of the alleged instances of bullying had occurred on or after 1 January 2014, PSS raised a jurisdictional objection to the application – i.e. whether the FWC has jurisdiction to deal with an application involving alleged bullying conduct which took place prior to the commencement of Part 6-4B.
As the case involved issues of general significance, it was referred to a Full Bench with submissions invited and received from the ACTU and Australian Industry Group (Ai Group) (as well as the parties directly involved).
The FWC Full Bench (Justice Ross, Vice President Hatcher and Commissioner Hampton) rejected PSS’s jurisdictional argument, and held that alleged bullying occurring prior to 1 January 2014 could be considered. In reaching this conclusion, the Full Bench found that:
Ms McInnes’ claim was remitted to Commissioner Hampton for further determination of the remaining issues.
So far, the FWC’s new anti-bullying jurisdiction has not led to the flood of claims that was anticipated.
While the Commission expected in the order of 67 bullying claims per week, only 66 applications were lodged to the end of February 2014. A high proportion of these claims involved employee allegations of bullying against their supervisors or managers.
Despite these statistics, the risks of potential bullying claims remain high for employers – and the Full Bench’s decision means that conduct extending some distance into the past can be subject to review when a worker lodges a claim for orders under Part 6-4B.
Employers therefore need to proactively manage this issue, by taking the following steps:
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