An employer ‘s push to stop the Fair Work Commission from considering bullying claims that occurred before the new laws came into effect (so before 1 Jan 2014) shows blatant disregard for bullied workers and lets those employers off the hook for bullying.
According to those like minded employers bullied worker would need to continue to be bullied for some time into the new year before they could try and prove the behaviour is repeated and ongoing and seek the assistance of the FWC to have it stopped! 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: does the new anti-bullying laws apply retrospectively?
Do the new Fair Work bullying laws apply retrospectively?
Employers push to force bullying victims to suffer longer
25 February, 2014 | Media Release
An employer push to stop the Fair Work Commission (FWC) from considering bullying claims that occurred before the new laws came into effect demonstrates heartless disregard for workers and lets employers off the hook.
ACTU Assistant Secretary Michael Borowick said the new laws – which came into effect on January 1, 2014 – meant a worker could now lodge an application with the FWC seeking an order that bullying stop. Fair Work has to start to deal with an application within two weeks of an application being lodged. (Read more about the process and some very important points to take from these new anti-bulying provisions)
“It’s in everyone’s interest to stop stressful, damaging and sometimes deadly workplace bullying as soon as possible,” he said.
“However what employers are now pushing for would mean that bullying victims would need to endure months more abuse.”
“A worker would need to continue to be bullied for some time into the new year before they could try and prove the behaviour is repeated and ongoing and seek the assistance of the FWC to have it stopped.
“Bullying creates a risk to health and safety and should not be tolerated.”
“What unions will be pushing for is that if a worker has experienced bullying at least once since the new laws came into play and there is a risk that it will continue, then previous incidents should be admissible simply to demonstrate that this is ongoing, damaging behaviour and the FWC needs to order it to stop.”
Mr Borowick said the only benefit of whitewashing illegal previous incidents of bullying was to let employers off the hook.
“Any employer who oversees a workplace where bullying is occurring already has a responsibility to do all they can to make that workplace safe. They have had this responsibility under existing Work Health and Safety laws, independent of the Fair work Act,” he said.
“This would have the opposite affect by prolonging the issue and ignoring all the previous incidents.”
“Employers claim that the bullying laws would have retrospective operation if bullying that occurred last year were able to be taken into account by the FWC,” Mr Borowick said.
“That’s simply not true. The laws do not have retrospective operation and are intended to make bullying behaviour stop as soon as possible. Anything that gets in the way of this outcome is unacceptable.”
“The new bullying laws contain appropriate checks and balances that empower the FWC to dismiss vexatious claims.”[Source: http://www.actu.org.au/Media/Mediareleases/Employerspushtoforcebullyingvictimstosufferlonger.aspx?utm_source=twitterfeed&utm_medium=twitter]
The question is: Do the new Fair Work bullying laws apply retrospectively?
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.
It is understood that the Full Bench of the Fair Work Commission will shortly decide whether the new anti-bullying laws -which started on 1 January 2014 – apply to bullying behaviour which occurred prior to 2014.
In the case of K.McInnes & Peninsular Support Services (trading as Peninsular Support Services and Cindy Keys (AB2014/1009), the Full Bench heard submissions from the Australian Industry Group (Ai Group) and the Australian Council of Trade Unions (ACTU) in addition to the two parties.
In their submission, the Ai Group claimed the new anti-bullying laws only apply to behaviour occurring on or after 1 January 2014, basing their (greedy) argument on the “long standing legal principle” that:“a law does not apply to conduct which occurred prior to the operation of a law unless the law expressly states that past conduct is to be taken into account”. See the Ai Groups submission >>
Isn’t it most interesting to see the Ai Group vigorously defend the application of the new bullying laws? How come they did not see a “long standing legal principle” for example when the new NSW workcover laws were implemented retrospectively? Again, guys, it all comes down to one thing: Greed and Money.
However, as outlined in their media statement (above) the (union) ACTU disagrees that the new laws would have retrospective effect if the FWC took into account bullying behaviour that occurred prior to 2014.“The laws do not have retrospective operation and are intended to make bullying behaviour stop as soon as possible”.
The ACTU stressed that the Ai Group’s interpretation of the law would mean that “bullying victims would need to endure months more abuse” before they are able to seek an order for the bullying to stop. This would be because the definition of bullying requires a worker to show unreasonable behaviour that is repeated.
We understand that The Full Bench reserved its decision on 27 February and that we can expect their judgment within 12 weeks of the judgment being reserved. Needless to say we are waiting for this judgment with great interest.