We recently published an article outlining that the question has now been asked whether the Fair Work Commission (FWC) can make orders in respect of bullying behaviour that occurred before to the commencement of the new laws on 1 Jan 2014. In other words, whether the new anti-bullying laws/provisions apply retrospectively. The answer is YES!
FWC Landmark ruling on anti-bullying regime – provisions apply retrospectively
Fair Work Commission hands down landmark ruling on anti-bullying regime
Posted 7/03/2014 by Jaan Murphy
On 6 March 2014, the Fair Work Commission (FWC) ruled that its jurisdiction to hear complaints from workers who allege they are victims of workplace bullying extends to complaints that relate to bullying that occurred prior to the anti-bullying regime coming into force.
As detailed in a previous flag post, the reforms related to bullying were introduced by the Fair Work Amendment Act 2013, which provided the FWC with jurisdiction to hear complaints from workers covered by the Fair Work Act 2009 (FWA) who allege they are victims of workplace bullying.
On 9 January 2014, Ms Kathleen McInnes filed an application for an order to prevent her from being bullied at work. One of the respondents was Peninsula Support Services (PSS). Ms McInnes alleged that she was subjected to bullying behaviour over a six year period commencing in November 2007 through to May 2013.
PSS raised a number of jurisdictional objections to Ms McInnes application. The key issue was whether the FWC had jurisdiction to hear and determine an application involving alleged bullying conduct which occurred prior to 1 January 2014, which is when the anti-bullying provisions in the FWA commenced.
Given the importance of the case, it was heard before a full bench of the FWC comprised of President Justice Ross, Vice-President Hatcher and Commissioner Hampton. In addition, the Commonwealth, Australian Chamber of Commerce and Industry (ACCI), Australian Industry Group (AIG) and the Australian Council of Trade Unions (ACTU) were invited to make submissions. The AIG and ACTU made submissions, whilst the Commonwealth and ACCI did not.
What were the issues raised in the case?
The central issue in the case was whether the FWC had jurisdiction to hear complaints about bullying that occurred before the commencement of the relevant provisions in the FWA on 1 January 2014.
What arguments were advanced?
The submissions of the PSS and AIG can be summarised as:
- the FWC had no jurisdiction to hear and determine bullying claims related to conduct that occurred before the commencement of the relevant provisions of the FWA (i.e. before 1 January 2014) and
- that if the FWC were to hear such claims, it would give the relevant anti-bullying provisions contained in the FWA retrospective operation, contrary to the intention of Parliament.
In support of this view, the PSS argued that the use of present tense in section 789FD (in particular the expression ‘while the worker is at work’) suggested that a worker can only be ‘bullied at work’ from a point in time when that legal characterisation of ‘bullying’ was in force (i.e. after 1 January 2014).
What did the FWC decide?
After engaging in a careful and thorough examination of the relevant legislation, the FWC rejected the submission of the PSS and AIG. The FWC noted that the anti-bullying regime:
…operates prospectively and is directed at preventing the worker being bullied at work. 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 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. (emphasis added).
The FWC noted that legislation ‘only operates retrospectively if it provides that rights and obligations are changed with effect prior to the commencement of the legislation’. It further noted that various authorities have drawn a distinction between legislation having a prior effect on past events and ‘legislation basing future action on past events’. In support of this view, the FWC referred to Re a Solicitor’s Clerk  1 WLR 1219 where Lord Goddard CJ stated (in relation to the legislation in question in that case) that:
This Act simply enables a disqualification to be imposed for the future which in no way affects anything done by the appellant in the past.
As a result, the FWC ruled that the anti-bullying provisions of the FWA were ‘basing future action on past events, and hence [are] not properly characterised as retrospective’. Put another way, the FWC was of the view that a section 789FF order ‘operates prospectively based, in part, on past events’, which the use of the expression ‘has been’ in that section made clear.
The FWC also rejected the view that if the FWC were to hear such claims, it would give the relevant anti-bullying provisions contained in the FWA retrospective operation as, in its view, the anti-bullying provisions in the FWA ‘[do] not attach any adverse consequence to past bullying conduct. Such conduct merely provides the basis for a prospective order to stop future bullying conduct.’
As a result, the FWC ruled that it did have jurisdiction to hear anti-bullying complaints based on conduct that occurred prior to 1 January 2014, and remitted the matter for determination.
Why is the case important?
The case is important as it clarifies the temporal scope of the anti-bullying jurisdiction conferred on the FWC.