Australian Fair Work Commission Anti-Bullying Report

The Fair Work Commission’s (Commission) anti-bullying jurisdiction commenced on 1 January 2014. The new jurisdiction empowers the Commission to make orders for that bullying to stop on application from a worker in a constitutionally covered business who reasonably believes that he or she has been bullied.

The Fair Work Commission recently released its first quarterly report on anti-bullying jurisdiction. Of the 151 applications made in the review period, 56 were finalised, with the majority still in the process of resolution. Of those matters finalised, only eight were finalised by decision of the Fair Work Commission; with seven applications dismissed, and only one application for an order to stop bullying being granted and orders made.

Details of the granted order made, do not reveal the contextual background giving rise to the application. However they do reveal the degree to which the Fair Work Commission is prepared to direct the manner in which the employment relationship, and / or the relationship between co-workers, is conducted. For example, the orders stated that the employee who was the subject of the application:

  • shall complete any exercise at the employer’s premises before 8.00 am;
  • 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; and
  • shall not raise any work issues without notifying the Chief Operating Officer of the respondent, or his subordinate, beforehand.

The applicant was also ordered not to arrive at work before 8.15 am.

Despite the apparent specificity of the orders they also reflect a degree of ambiguity, as to what, for example, constitutes an “exercise”, “emergency circumstances” and “work issues”. This may result in issues arising as the parties attempt to implement the orders in practice.

A significant feature of the orders was that they were not subject to any time limit. While the anti-bullying laws do not specify required time limit on any orders made, the failure to address this issue may result in the orders of this type being appealed, or a request for clarification made.

Other significant developments in the first few months of the jurisdiction’s operation include findings that:

  • Alleged bullying conduct which occurred prior to the commencement of the anti-bullying provisions on 1 January 2014 may be the subject of an anti-bullying application, because an order under 789FF of the Fair Work Act 2009 (Cth) operates prospectively based, in part, on past events, and cannot therefore be properly characterised as having retrospective application. See example shown in Ms Kathleen McInnes Application for an FWC order to stop bullying;
  • As highlighted in Ms Kathleen McInnes case, for a community organisation to fall within the definition of a constitutional corporation it must be a “trading corporation”; and
  • A person in receipt of carer payments from the Commonwealth Department of Human Services (Centrelink) is not a “worker” for the purposes of the anti-bullying provisions, because satisfying the relevant qualifying requirements for receipt of such payments does not amount to performing work for Centrelink.

Future decisions in this space, not least the anticipated decision as to whether a union can apply for an anti-bullying order, will continue to be of great interest to practitioners in the area, as the extent and limits of the new jurisdiction and the Fair Work Commission’s powers are tested.

Alicia is a former Freehills (now Herbert Smith Freehills) Senior Associate and currently practices employment law, primarily in the broadcasting and published media industry, in addition to working as the Senior Specialist, Workplace Relations and Policy, for a major professional services firm. Alicia is also the Managing Editor for Thomson Reuters Industrial Reports.

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