Anti-Bullying Laws Update: First Reported Decision

May 15, 2017

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Update:  Fair Work Anti- Bullying Laws
The Full Bench of the Fair Work Commission (the ‘Commission’) has clarified the scope of the new workplace anti-bullying laws.

What does this mean?

When it is deciding whether to make a stop bullying order, the Commission has the power to consider any alleged bullying that has occurred in the past notwithstanding that the anti-bullying laws did not commence until 1 January 2014.

The Case:  Application by K M [2014] FWCFB 1440

A worker made an application for a stop bullying order.  The application was as a result of 6 years of alleged bullying that was said to have occurred up until May 2013. The worker did not allege that any bullying had occurred after May 2013.

The employer’s response

The employer objected to the application and argued that the Commission did not have the power to investigate the application or to make an order because the bullying that had been alleged had occurred before the anti-bullying laws commenced.

It is a general rule that (unless it is clearly stated) when a new law is introduced, or an existing law is changed, the new law won’t apply to past events in such a way as to impose obligations on, or affect a person’s rights.

If this were not the general rule it may lead to situations where a person could be charged with an offence relating to something that they did years earlier even though it was not unlawful at that time.

The decision

The Full Bench did not accept the employer’s argument and explained that:

“Legislation only operates retrospectively if it provides that rights and obligations are changed with effect prior to the commencement of the legislation… the authorities draw a distinction between legislation having a prior effect on past events and legislation basing future action on past events.”

This means that past events are considered

Three matters that have to be established before the Commission can make an Anti-bullying laws order:

  1. a worker (who reasonably believes they have been bullied at work) has made an application to the Commission; and
  2. the Commission is satisfied that the worker ‘has been bullied at work by an individual or group of individuals’; and
  3. the Commission is of the view that there is a risk that the worker will continue to be bullied at work by the individual or group.

The Full Bench explained that it is clearly stated in the second requirement that past events can be considered because the words ‘has been’ are used.

Further, the Full Bench essentially reasoned that  it is okay to consider bullying that has happened in the past because it is only for the purpose of deciding whether or not a stop bullying order will be made, and it is not for the purpose of imposing any negative obligations / consequences on the bully or others.

For more information on Anti-bullying laws contact Paul Horvath Solicitors   |   T: (03) 9642-0435

You can read the full decision on Anti-bullying laws on the Fair Work Commission webpage.