Do the new Fair Work bullying laws apply retrospectively?

bullying-restrospective

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.”

“Employers want to white wash any incident which occurred prior to the new laws so that even if the incidents have been going on for months, they would not be admissible as proof that urgent action is needed.”

“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.

 



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3 Responses to “Do the new Fair Work bullying laws apply retrospectively?”

  1. Seriously who should have to work with an ediot on ICE that’s threatened the staff these so called law creators before the year starts should confer with police be up dated of community issues and pass what laws that need to be up dated straight away .This great country is out of control listen to the radio any morning WTF. Community laws do continue into the workplace.Gold coast bus assault today she was refused bail great.No one should have to go and work when told they will be bashed at work I had to standing up for team and the the next thing I was targeted to an extreme met after work don’t worry it wasn’t pretty not good removed from workplace.Employers should be within the same conditions as parents that is duty of care.Parents have there children taken away if the can not protect.We all go to work to better the bosses business and in turn our job security which than taxes are paid education is further provided the country is expanding for the good.No no a patern of behaviour before there are dismissals WTF no. Some should spend a couple of days at the local cop shop on the beat back to the ground roots this behaviour goes to work every day. (Google A senior case manager Workcover Qld harassment …just answer )(now that’s a gold statement they do it to there own what can we expect.) I will be firmly suggesting to the federal government that your issues are addressed.I’m well known within some of these Dept ‘s and don’t worry they are listening.Write to tony abbot I think he’s a decent person I’ve had a response from Julia Gillard signed letter by Jan Mclucas just after this,the announcement of the national disability sceme.Might of been my letter I certainly did not mix my words.And my letters to Cambell Newman no mixing of my words there either. Our concerns have to be apart of this royal commission thanks Tony and George looking toward to our meetings in the future.A least in Queensland overseas workers might think twice before taking a position for work when now we all have to deal with the verbal warning as a control measure for threats of bashings at work maybe other states might take this new and exciting control measure on board.The spoken words by the Victorian premier yesterday were gold Denis supporting his state these things will have to be addressed strait away.And this verbal warning in Qld rubbish the laws are drawn up 2009 passed by government and Workcoverup “your claim has not been assed if the company has in acted all aspects of the legislation”no no.Workcoverups on hold message was only provided to me in its completeness after a debate for many hours why should we provide this.Than letting them know I’ve had many hours of conversation with the Cib police headquarters and over two hours at Qld premiers office.Than emailing them Abuse of public office the crimminal code 1899 now that is an interesting read then it was provided.This message wile waiting to speak to them it clearly says” Help us help you become an industry leader in workplace health and safety”Shine could you step In please we will all pass the hat around for costs there’s a lot of tax payers in Qld.My doctor told me the best way to address this,turn it into a comedy show the second doc said it sounds like a movie script.I’m not giving in I’ve been sent broke ,had more brush offs than a race horse I was provided 15 minuates talk back radio that went all over Australia thanks John he must have an uncanny sense of people not speaking rubbish.I’ll keep every one in the loop and remember this when attending my local federal members office,we cannot help you then I threw the curve ball and said AS A CONSTITUANT IT IS MY WILL THAT THIS IS LOOKED INTO SHE SPUN AROUND AS IF SHE WON THE LOTTO CAME BACK WITH A NOTE PAD WELL WELL. THE WORD WILL IS A STRONG LEGAL WORD MAKE SURE YOU THROUGH IN THE CONSTITUANT WORD BY LAW THEY HAVE TO HELP CRIMMINAL OFFENCES ARE NEVER TO OLD TO LOOK INTO ALSO THE QLD POLICE TOLD ME TO FILL A FRAUD REPORT OUT GOLD I’VE THERE SUPPORT.Megan at the federal attorney general office told me to continue and I will have a result hope is not another 6138 dollar court bill for speaking up not to forget false allegations from the boss.I’ll keek up in the look that if I don’t get knee capped.

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    • mate whats the point to all these incomprehensible posts of yours that read like the mutterings of a schizophrenic

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    • I could not read your post because you didn’t format the text, believe me it’s something annoying so if you want people to actually read what you say, I would suggest you use paragraphs, commas, spaces and full stops.

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      Xchangingvictim March 2, 2014 at 10:57 am