Challenge to bullying laws dismissed
The full bench of the Fair Work Commission has dismissed an employer’s submission that the commission has no jurisdiction to determine stop bullying applications for bullying that occurred before 1 January.
Since 1 January, under a new provision in the Fair Work Act 2009, workers who reasonably believe they have been bullied at work can apply to the commission for a stop bullying order.
On 9 January, Kathleen McInnes applied for such an order, alleging she had been subjected to bullying from November 2007 to May 2013.
Her employer, Peninsula Support Services Inc trading as Peninsula Support Services (PSS), submitted that the commission had no jurisdiction to hear the application.
The matter was referred to the full bench, and the Commonwealth, Australian Chamber of Commerce and Industry, Ai Group and the Australian Council of Trade Unions were invited to make submissions. Ai Group and the ACTU made submissions, but the other two declined.
The employer and Ai Group submitted that the commission had no jurisdiction to hear and determine claims involving alleged bullying that occurred before the start of the new law because it would make the law retrospective.
The full bench disagreed , saying it was “not persuaded that entertaining an application” for a stop bullying order based on bullying behaviour alleged to have occurred before the start of the new law would make the law retrospective.
“When considering the question of retrospectivity the authorities draw a distinction between legislation having a prior effect on past events and legislation basing future action on past events,” the full bench said.
The application is back before Commissioner Peter Hampton for determination of the stop bullying order.
For more details, visit the summary decision and the full decision