THE Fair Work Commission has passed a landmark ruling under its new bullying jurisdiction that allows applications for a stop-bullying order to be heard for behaviour occurring before the current legislation was implemented on 1 January 2014.

Heard before a full bench comprising FWC President Justice Iain Ross, Vice President Adam Hatcher and Commissioner Peter Hampton, last Thursday’s decision saw the applicant successfully referring to bullying against her between November 2007 and May 2013.

The respondent, a Melbourne-based support services group, argued that because the alleged bullying had occurred before the current laws took effect, a ruling in favour of the application would give the legislation retrospective operation.

The company pointed to ambiguity around the concept of bullying occurring ‘while the worker is at work’, under section 789FD of the Fair Work Act 2009. In particular, it argued that “that a worker can only be bullied at work from a point in time when that legal characterisation of ‘bullying’ was in force”.

The bench, however, rejected the respondent’s claim specifically referring to section 789FD of the Fair Work Act, saying it “simply provides the context in which the bullying behaviour has taken place”.

“The alleged bullying behaviour must take place prior to the making of an application for an order. [The legislation] makes this clear. Only a worker who reasonably believes that he or she ‘has been bullied at work’ can apply for an order,” the Commission said.

In its submission on the issue, Ai Group argued that bullying behaviour before 1 January should not be considered under the Fair Work Commission’s new jurisdiction as it incurred retrospective operation.

The Commission, however, refuted the Ai Group’s position, stating that “Legislation only operates retrospectively if it provides that rights and obligations are changed with effect prior to the commencement of the legislation”.

An application for an order to stop bullying was intended to have prospective operational impact, the bench argued, meaning that consideration of previous bullying behaviours alone did not constitute retrospective operation.

“The Commission is specifically precluded from making an order requiring the payment of a pecuniary amount, hence it cannot make an order requiring a respondent to pay an amount of compensation to an applicant,” the Commission stated.

“The legislative scheme is not directed at punishing past bullying behaviour or compensating the victims of such behaviour. It is directed at stopping future bullying behaviour.”

To read the full decision, click here.

Implications for Employers

That past bullying behaviours will now be considered before issuing an order to stop bullying conduct highlights the significance of creating a workplace culture where bullying is effectively managed with internal solutions.

When bullying jurisdiction was first awarded to the Fair Work Commission under the former Labor government, AMMA raised concerns that the move would be counterproductive to the existing and more efficient measures employers have in place to deal with bullying behaviour at the workplace level.

Concerns for both victims and alleged bullies were raised on the subjective definition of ‘bullying’ as well as the time it could take for the Commission to properly investigate and conclude any bullying matters.

To counter this issue, resource employers are encouraged to implement control measures that limit the likelihood of bullying in the workplace and enables responsive action to reports of bullying behaviour as they arise.

An anti-bullying policy guiding employees toward a confidential, reasonable and timely process of managing bullying complaints will encourage staff to seek assistance internally before approaching the Fair Work Commission for assistance. In addition to describing your complaint handling procedure, ensure your policy outlines clearly what managerial behaviours are not considered workplace bullying.

AMMA’s consultants can provide you with advice and information about the new bullying legislation and work with you to develop an anti-bullying policy for your workplace. For more information or to talk to one of our experts, contact your local AMMA office by clicking here.