Fair Work Commission active in bullying jurisdiction

Thursday 27 March, 2014

During the past week, the Fair Work Commission (FWC) has been active in issuing decisions in the new bullying jurisdiction. This week the FWC issued the first Order to Stop Bullying, determined who was a constitutionally covered corporation and signalled its intention to hear whether unions can lodge bullying claims on behalf of workers.

1. FWC issues first Order

In what many were hoping to be a comprehensive judgement, the FWC has issued what can be termed a ‘consent order’ restraining an individual from having contact with a worker. Senior Deputy President Lea Drake issued an order requiring the individual to:

• have no contact with the applicant (worker);

• make no comment about the worker’s clothes or appearance

• not send any emails or text messages to the worker, except in emergency circumstances; and

• not raise any work issues with the worker without notifying the worker’s Chief Operating Officer (or their subordinate) in the first instance.

Despite being a consent order, what is not clear is what steps the FWC took to satisfy itself bullying behaviour had occurred and if there was a risk of the worker will continue to be bullied at work by the individual. Unfortunately, employers are no closer to having a precedent of what bullying behaviour is under the Fair Work Act 2009.

Applicant v Respondent PR548852 (21 March 2014)

2. Bullying test case dismissed on jurisdictional grounds

The Fair Work Commission has determined who is a ‘constitutionally-covered business’ for the purpose of satisfying the bullying definition.

To make an application for an Order to Stop Bullying the following components must be present:

• the application is a worker (as defined);

• the worker was at work at a constitutionally-covered business;

• the bullying behaviour was repeated and unreasonably;

• the behaviour causes risk to health and safety; and

• the behaviour is not reasonable management action in a reasonable manner.

Commissioner Hampton said the principal question to be determined was whether the employer, a not-for-profit community organisation, which received State and Commonwealth Government funding to provide services to people with psychiatric disabilities, fits the definition of a constitutionally-covered business.

Commissioner Hampton further said that the only way a community organisation could fit under the definition was by way of being found to be a ‘trading’ corporation. After examining the service agreements between the organisation and the funding providers, Commissioner Hampton was satisfied the organisation carried out non-trading services and income derived from trading activities (ie sale of assets) were insignificant. On that basis, Commissioner Hampton determined the organisation was not a ‘constitutionally-covered business’ and dismissed the application because the FWC had no jurisdiction to deal with it.

Ms Kathleen McInnes [2014] FWC 1395 (24 March 2014)

3. Fair Work Commission to determine whether unions can make bullying claims on behalf of workers

 The National Union of Workers (NUW) have sought several Orders to Stop Bullying for a group of unidentified Hoban Recruitment Pty Ltd labour hire workers engaged at a Caterpillar site in Tullamarine. Both Hoban Recruitment and Caterpillar are disputing the union’s right to file the application, arguing the NUW are not workers as defined by the bullying definition in the Fair Work Act 2009.

The FWC President, Justice Ian Ross has referred the matter to a Full Bench, also asking the bench to consider whether workers must identify themselves by name in an application.

These three decisions demonstrate the intricacies of the legislation and the need to closely examine any application in light of the requirements set out in the Fair Work Act 2009.

Should members require advice regarding workplace bullying, CCIQ’s EAL team can assist and can be contacted on 1300 731 988 or advice@cciq.com.au

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