Bullied before 1 January 2014? The Fair Work Commission has jurisdiction to make a stop bullying order, but your employer will need to be a corporation

 

In previous articles we have spoken about the anti-bullying jurisdiction that was conferred on the Fair Work Commission with effect from 1 January 2014, and who can take advantage of it.

On 6 March 2014 the Full Bench of the Commission decided that behaviour that occurred before 1 January 2014 can be used as the basis to apply for a stop bullying order: Application by Kathleen McInnes [2014] FWCFB 1440.

Ms McInnes filed an application for a stop bullying order that relied upon behaviour that had occurred between November 2007 and May 2013.

Commissioner Hampton referred the application to the Full Bench for a ruling given the issue that it raised.  The Commonwealth Government and peak bodies were invited to make submissions on how legislation granting rights from 1 January 2014 could rely on events that occurred before that date.

Interestingly, the Commonwealth Government did not respond to the invitation but the Australian Industry Group and the ACTU both did.

Unsurprisingly their submissions reflected their likely positions on the anti-bullying legislation: namely the employers wanting to limit its effect and the unions wanting to give it as broad an application as possible.

The question that the Full Bench had to decide was whether the anti-bullying legislation was truly retrospective in its effect.

It is a legal principle that legislation should not operate in reverse to alter or affect the rights and liabilities of people unless this is made plain.

But a distinction needs to be made between legislation that affects past rights and liabilities and legislation that grants future or present rights based on past acts.  The Full Bench found that the anti-bullying legislation falls within the latter category and is therefore not retrospective in its operation.

The Full Bench remitted the application to Commissioner Hampton to deal with a further jurisdictional objection based on the employer not being a constitutional corporation.  Ms McInnes’ employer was incorporated under the Associations Incorporation Act 1981 (Victoria) and is a charity registered with the Australian Charity and Not for Profit Commission.  It provides programs for people living with mental illness and is funded through the Victorian and Commonwealth Governments.

On 24 March 2014 Commissioner Hampton decided that based on its overall activities the employer was not a trading corporation within the definition of constitutional corporation and therefore dismissed the application: Application by Kathleen McInnes [2014] FWC 1395.

So two matters concerning the anti-bullying legislation have been confirmed:

1.            A pattern of behaviour starting or occurring before 1 January 2014 can be relied upon;

2.            Outside the Commonwealth Government sector the employer must be a corporation.

PS: On 21 March 2014 the Fair Work Commission made its first formal orders under the anti-bullying legislation: Applicant v Respondent [2014] PR548852.  There are no published reasons for decision on which the orders were based but reading them, the Commission intended that two employees have as little to do with each other as possible.

Greg Doran
Director

Anyone seeking advice about workplace laws should contact Nevett Ford Melbourne Lawyers on 03 9614 7111.