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Home | Blog | Past bullying can be relied on to activate anti-bullying powers

Fair Work Commission

The Full Bench of the Fair Work Commission has confirmed that while no “adverse consequences” arise from alleged bullying that occurred before recent bullying amendments became effective on 1 January 2014, those events can be taken into consideration in deterring whether the Commission’s anti-bullying jurisdiction has been activated.

Those requirements were confirmed by the Fair Work Commission as:-

  1. a worker (who reasonably believes they have been bullied at work) must have made an application under s.789FC (hence the jurisdiction cannot be exercised on the Commission’s own motion); and
  2. the Fair Work Commission must be satisfied that the worker ‘has been bullied at work by an individual or group of individuals’; and
  3. the Fair Work Commission must be satisfied that there is a risk that the worker will continue to be bullied at work by the individual or group.

The Full Bench said that the second requirement was clearly based on past events and those events could pre-date 1 January 2014.

The Fair Work Commission rejected the argument that such a construction gave the legislation retrospective operation as the past conduct merely provides the basis for a prospective order to stop future bullying conduct.

Application by Ms Kathleen McInnes [2014] FWCFB 1440, 6 March 2014

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