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.
