Anti-bullying laws – how are they being applied?
Sparke Helmore Lawyers
On 1 January 2014, new anti-bullying laws commenced under the Fair Work Act 2009 (Cth) implementing a new jurisdiction for the Fair Work Commission (FWC) to make orders to stop bullying in the workplace. More than six months on, we reflect on some of the anti-bullying decisions and identify key issues for employers.
As at 31 March 2014, the FWC had received 151 anti-bullying applications, which is significantly less than the 875 applications per quarter that the FWC predicted. It is now clear that:
• the FWC can make a wide range of orders against employers and employees
• the FWC takes a strict approach towards “exceptional circumstances” meriting a costs order, making it difficult for employers to recoup costs from failed applications, and
• the majority (72%) of bullying applications received by the FWC relate to the actions of managers.
1. An order may have indefinite application
In Applicant v Respondent1, the FWC’s order included very specific directions limiting the interactions between two co-workers, including: specifying what time the co-workers were required to attend work; and prohibiting them from contacting each other except in an emergency. However, the FWC did not stipulate an end date for these directions, which may mean the employer will be required to enforce these directions indefinitely. The parties were however granted leave to have the matter relisted, should they have difficulty implementing the directions.
2. Past bullying behaviour does count
In the case of Kathleen McInnes , Ms McInnes sought to rely on bullying behaviour that occurred before the anti-bullying laws commenced. The employer argued that she should not be allowed to rely on events that occurred before 1 January 2014, because legislation cannot operate retrospectively. The FWC rejected this view and held that Ms McInnes could rely on past behavior because the legislation operated by “basing future action on past events, and hence is not properly characterised as retrospective”.
3. The FWC takes a broad approach to reasonable management action
In Ms SB , the FWC considered the exemption to bullying of “reasonable management action” and found the relevant consideration is not whether the action could have been undertaken in a manner that was “more reasonable” or “more acceptable”, but rather whether the management action was reasonable. In Mr Sun the FWC turned to the explanatory memorandum for guidance, which says that employers “Need to be able to make necessary decisions to respond to poor performance, or if necessary, take disciplinary action and also effectively direct and control the way work is carried out”. In both decisions, the management action undertaken was found to be reasonable. The FWC recognises that management action is valid and necessary to any business and that what constitutes management action will be interpreted in a practical manner.
Employers are not required to take the ideal or best course of action; the action taken need only be reasonable in the circumstances.