[2014] FWCFB 1440
The attached document replaces the document previously issued with the above code on 6
March 2014.
The section in paragraph 13 is corrected to s.789FF
David Mitchell
Associate to Justice Ross
Dated 6 March 2014
1
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
Ms Kathleen McInnes
(AB2014/1009)
JUSTICE ROSS, PRESIDENT
VICE PRESIDENT HATCHER
COMMISSIONER HAMPTON
MELBOURNE, 6 MARCH 2014
Application for an FWC order to stop bullying.
Background
[1] On 9 January 2014 Ms Kathleen McInnes (the applicant) filed an application pursuant
to s.789 FC of the Fair Work Act 2009 (Cth) (the FW Act) for an order to prevent her from
being bullied at work. One of the respondents to the application is Peninsula Support Services
Inc t/as Peninsula Support Services (PSS). The application alleges that the applicant was
subjected to bullying behaviour over a six year period commencing in November 2007
through to May 2013. The applicant does not refer to any bullying behaviour since May
2013.
[2] The relevant legislative provisions are set out in Part 6-4B: Workers bullied at work,
of the FW Act. Part 6-4B commenced operation on 1 January 2014. PSS has raised a number
of jurisdictional objections to the application. The issue for determination is whether the
Commission has jurisdiction to hear and determine an application involving alleged bullying
conduct which occurred prior to the commencement of Part 6-4B of the FW Act.
[3] Given the general significance of the issue raised in these proceedings the
jurisdictional issue was referred to a Full Bench for determination and the Commonwealth
and Peak Industry Councils (ACCI, Ai Group and the ACTU) were invited to make
submissions. Ai Group and the ACTU filed written submissions and made oral submissions
in the proceedings. The Commonwealth and ACCI made no submissions.
[4] We turn first to the relevant legislative provisions before considering the submissions.
The legislative provisions
[5] Part 6-4B (ss.789FA to 789FL) was inserted into the FW Act by the Fair Work
Amendment Act 2013 (Cth) (the 2013 Amendment Act). Section 789FC(1) sets out who may
apply to the Commission for an order under s.789FF to prevent a worker from being bullied at
work,:
[2014] FWCFB 1440
DECISION
E AUSTRALIA FairWork Commission
[2014] FWCFB 1440
2
“s.789FC(1) A worker who reasonably believes he or she has been bullied at work may
apply to the FWC for an order under section 789FF.” (emphasis added)
[6] Section 789FD deals with when a worker is ‘bullied at work’:
“(1) A worker is bullied at work if:
(a) while the worker is at work in a constitutionally covered business:
(i) an individual; or
(ii) a group of individuals;
repeatedly behaves unreasonably towards the worker, or a group of workers of which
the worker is a member; and
(b) that behaviour creates a risk to health and safety.
(2) To avoid doubt, subsection (1) does not apply to reasonable management action
carried out in a reasonable manner.” (emphasis added)
[7] We note here that PSS relies on the use of the present tense in s.789FD (in particular
the expression ‘while the worker is at work’) in aid of its submission that a worker can only
be bullied at work from a point in time when that legal characterisation of ‘bullying’ was in
force, that is on and from 1 January 2014. We reject this submission. The reference to ‘is at
work’ in s.789FD(1) simply provides the context in which the bullying behaviour has taken
place. The alleged bullying behaviour must take place prior to the making of an application
for an order under s.789FF. Section 789FC(1) makes this clear. Only a worker who
reasonably believes that he or she ‘has been bullied at work’ can apply for an order.
[8] The scope of the Commission’s power to make orders to stop bullying is set out in
s.789FF:
‘(1) If:
(a) a worker has made an application under section 789FC; and
(b) the FWC is satisfied that:
(i) the worker has been bullied at work by an individual or a group of
individuals; and
(ii) there is a risk that the worker will continue to be bullied at work by
the individual or group;
then the FWC may make any order it considers appropriate (other than an order
requiring payment of a pecuniary amount) to prevent the worker from being bullied at
work by the individual or group.
(2) In considering the terms of an order, the FWC must take into account:
(a) if the FWC is aware of any final or interim outcomes arising out of an
investigation into the matter that is being, or has been, undertaken by another person
or body - those outcomes; and
(b) if the FWC is aware of any procedure available to the worker to resolve
grievances or disputes - that procedure; and
(c) if the FWC is aware of any final or interim outcomes arising out of any
procedure available to the worker to resolve grievances or disputes - those outcomes;
and
(d) any matters that the FWC considers relevant.’
[2014] FWCFB 1440
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[9] Importantly, a s.789FF order operates prospectively and is directed at preventing the
worker being bullied at work. The Commission is specifically precluded from making an
order requiring the payment of a pecuniary amount, hence it cannot make an order requiring a
respondent to pay an amount of compensation to an applicant. The legislative scheme is not
directed at punishing past bullying behaviour or compensating the victims of such behaviour.
It is directed at stopping future bullying behaviour.
[10] Schedule 2 to the 2013 Amendment Act provides that Schedule 3 (the Anti Bullying
measure, now Part 6-4B of the Act) commences operation on 1 January 2014. Schedule 4 to
the FW Act1 deals with the application and transitional provisions relating to the amendments.
Item 8 of that Schedule provides that
“The amendments made by Schedule 3 to the amending Act apply in relation to an application
that is made under section 789FC (as inserted by item 6 of that Schedule) after the
commencement of that Schedule.”
[11] This means that an application under s.789FC can only be made after the
commencement of Schedule 3, but the provision is silent on whether such an application can
be based on bullying behaviour that has occurred prior to the date of commencement. It is
notable that other parts of Schedule 4 make it clear that certain amendments only apply to
conduct after the commencement date. For example, Item 10 of Schedule 7 states:
“10 Schedule 4A to the amending Act
(1) The amendments made by Part 1 of Schedule 4A to the amending Act apply
in relation to dismissals that take effect after the commencement of that Schedule.
(2) The amendments made by Part 2 of Schedule 4A to the amending Act apply
in relation to employment that is terminated after the commencement of that
Schedule.”
Submissions and consideration
[12] PSS and Ai Group submitted that the Commission has no jurisdiction to hear and
determine a claim involving alleged bullying conduct that occurred before the commencement
of Part 6-4B of the FW Act (ie. before 1 January 2014). This submission is put on the basis
that if the Commission were to entertain such a claim it would give Part 6-4B a retrospective
operation or application in circumstances where Parliament did not intend the provisions to
have such an operation.
[13] Contrary to the submissions advanced on behalf of PSS and Ai Group we are not
persuaded that entertaining an application for a s.789FF order based on bullying behaviour
alleged to have occurred prior to the commencement of Part 6-4B can properly be
characterised as giving Part 6-4B a retrospective operation. Legislation only operates
retrospectively if it provides that rights and obligations are changed with effect prior to the
commencement of the legislation. 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. As Dixon CJ said in Maxwell v Murphy2:
“The general rule of the common law is that a statute changing the law ought not, unless the
intention appears with reasonable certainty, to be understood as applying to facts or events that
[2014] FWCFB 1440
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have already occurred in such a way as to confer or impose or otherwise affect rights or
liabilities which the law had defined by reference to the past events. But, given rights and
liabilities fixed by reference to past facts, matters or events, the law appointing or regulating
the manner in which they are to be enforced or their enjoyment is to be secured by judicial
remedy is not within the application of such a presumption.”
[14] There are numerous examples of courts applying this distinction. In La Macchia v
Minister for Primary Industry3 the holder of a fisherman’s licence was convicted of an
offence that at the time of conviction could not result in the cancellation of his licence. The
relevant Act was subsequently amended to permit cancellation for such convictions. The Full
Federal Court upheld the validity of a cancellation based on the conviction before the Act was
amended. Toohey J (with whom Bowen CJ agreed) said:
“There are, I think, only two other matters in the applicants’ case that call for comment.
The first is the argument that, in relying upon a power in s.9A(3A) which did not exist at the
time of the conviction of Mr La Macchia, a penal power was exercised retrospectively. There
are two answers to this contention. The first is that the Minister was not exercising a penal
power even though cancellation imposed a hardship on the applicants by depriving them for a
time of their ability to fish commercially. Cancellation is not part of the penalty a Court of
Petty Sessions may impose. It is part of the scheme of the Act which seeks to control
commercial fishermen in their fishing activities. Rock lobsters are a valuable common
property resource and activities damaging the resource are hard and costly to police. The
power of cancellation is an important aspect of the system of control and should be seen in
that light.
Secondly, while the Minister could not have given a notice prior to the sub-section coming
into operation, he was not constrained thereafter to rely upon a conviction that itself occurred
after the sub-section came into operation. The commission of an offence, whether before or
after 31 August 1985, is a circumstance warranting the giving of a notice under sub-s (3A).
The order does not have retrospective effect simply because it relies upon conduct that
occurred before the power existed.”4 (citations omitted)
[15] Similarly in Re a Solicitor’s Clerk5 the disciplinary committee of the Law Society had
made an order under s.16(1) of the Solicitors’ Act 1941 (as amended by s.11(1) of the
Solicitors’ (Amendment) Act 1956) directing that no solicitor should thereafter employ the
appellant, a solicitor’s clerk who had been convicted of larceny in 1953. The appellant
contended that the committee was giving retrospective effect to the 1956 Amendment Act by
applying it to a conviction which took place in 1953. Lord Goddard CJ, with whom Barry
and Havers JJ agreed, said:
“... In my opinion this Act is not in truth retrospective. It enables an order to be made
disqualifying a person from acting as a solicitor’s clerk in the future and what happened in the
past is the cause or reason for the making of the order, but the order has no retrospective
effect. It would be retrospective if the Act provided that anything done before the Act came
into force or before the order was made should be void or voidable, or if a penalty were
inflicted for having acted in this or any other capacity before the Act came into force or before
the order was made. This Act simply enables a disqualification to be imposed for the future
which in no way affects anything done by the appellant in the past.”6
[16] More recently, in Australian Licenced Aircraft Engineers Association v International
Aviation Service Assistance Pty Ltd (‘International Aviation’)7, Barker J had to determine
whether the Court had jurisdiction to determine a general protections application (under Part
[2014] FWCFB 1440
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3.1 of the FW Act) in circumstances where the exercise of the workplace right took place
before the commencement of Part 3.1. Section 340 states that:
“(1) A person must not take adverse action against another person:
(a) because the other person:
... (ii) has ... exercised a workplace right.”
[17] An employer contravenes s.340 if it can be said that the exercise of a workplace right
by the employee was ‘a substantial and operative factor’ in the employer’s reasons for taking
the action which constitutes ‘adverse action’ within the meaning of s.3428.
[18] In International Aviation the employee exercised a workplace right prior to the
commencement of Part 3-1 of the FW Act and the adverse action complained of was taken
after the commencement of Part 3-1. The respondent in that matter submitted that the
relevant provisions commenced operation on 1 July 2009 without any retrospective operation
and that the Court had no jurisdiction in respect of contraventions of the Act that occur before
that date:
“The respondent says that prior to it commencing operation, there was no such concept known
to law as a ‘workplace right’. Accordingly, the applicant’s contention that workplace rights
could be had or exercised or be proposed to be exercised before the commencement of the FW
Act, ‘defies all logic’.”9
[19] Barker J rejected the submissions advanced on behalf of the respondent and held, at
[282] to [284] of the judgment:
“When one comes to the s 340 proscribed reasons, they depend on an understanding of the
expression employed in the FW Act provisions – “workplace right”. That expression is given
meaning by s 341 of the FW Act. It speaks, as we have seen, to an entitlement or an ability to
do certain things under a workplace law or workplace instrument, as those latter expressions
are defined by the FW Act. They do not of themselves speak to an entitlement or ability that
arises under the FW Act itself, or at the time the identified adverse action occurred. Rather,
having regard to the proper construction of the meanings given to the expressions “workplace
law” and “workplace instrument”, they encompass adverse action taken because of
entitlements or abilities arising under earlier Commonwealth or State legislation of a particular
type.
...
There is therefore, in my view, no temporal limitation placed by the relevant FW Act
provisions on the time or period when a “workplace right”, as defined by the FW Act, should
have been exercised or enjoyed in the past or when the conduct that constitutes industrial
activity occurred.”
[20] The matter before us falls into the second category referred to by Dixon J, that is
legislation basing future action on past events, and hence is not properly characterised as
retrospective. As in the authorities referred to, a s.789FF order operates prospectively based,
in part, on past events. Three requirements must be met before the Commission’s discretion
to make an order to stop bullying is enlivened:
[2014] FWCFB 1440
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(i) 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
(ii) the Commission must be satisfied that the worker ‘has been bullied at work by an
individual or group of individuals’; and
(iii) the Commission must be satisfied that there is a risk that the worker will continue
to be bullied at work by the individual or group.
[21] The second requirement is clearly based on past events - as is apparent from the use of
the expression ‘has been’. The enactment of Part 6-4B does not attach any adverse
consequence to past bullying conduct. Such conduct merely provides the basis for a
prospective order to stop future bullying conduct.
[22] PSS sought to distinguish Re a Solicitor’s Clerk and La Macchia on the basis that the
application before the Commission looks back at conduct which occurred prior to the
commencement of Part 6-4B and seeks to fix it with certain consequences that did not exist at
the time that alleged conduct was engaged in. We reject the characterisation proposed by
PSS. The FW Act does not attach any liability to past events (ie the alleged bullying
behaviour), rather it is about stopping prospective conduct. As we have mentioned, Part 6-4B
is not directed at punishing past bullying behaviour or compensating the victims of such
behaviour.
[23] PSS also sought to distinguish the past events in Re a Solicitor’s Clerk and La
Macchia on the basis that in those cases the general law had already characterised that past
conduct as criminal (ie. larceny in Re a Solicitor’s Clerk and the conviction in La Macchia).
It was submitted that what the applicant is proposing in this case would apply an ‘adverse
legal characterisation’ to conduct which was ‘neutral’ (in the sense that it was not unlawful or
improper conduct).10 There are two problems with this submission. The first is that the
authorities are not confined to the circumstances identified by PSS. In circumstances where
future rights are determined on the basis of past conduct there is no requirement that the past
conduct be unlawful or improper. International Aviation is an illustration of this point.
[24] The second difficulty with PSS’s contention is that past bullying behaviour may well
be unlawful - it may constitute an assault or be in breach of occupational health and safety
legislation. On that submission the Commission would have to investigate the nature of the
past bullying and determine whether it could be characterised as unlawful or improper, before
determining whether there is jurisdiction to proceed on the basis of bullying behaviour which
predates 1 January 2014. We see no basis for concluding that the legislature intended such an
approach.
[25] For the reasons given we reject the jurisdictional objection taken by PSS. The
application is remitted to Commissioner Hampton for further hearing and determination of the
remaining issues.
PRESIDENT
[2014] FWCFB 1440
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Appearances:
Ms K. McInnes, applicant, appeared in person with Mr R. Smith assisting the applicant.
J. Dolan for the ACTU.
N. Harrington of Counsel, for respondents.
B. Ferguson for Ai Group.
Hearing details:
2014,
Melbourne
February 26
Printed by authority of the Commonwealth Government Printer
Price code C, PR548221
1 Inserted by Schedule 7 to the 2013 Amendment Act
2 (1957) 96 CLR 261 at 267; applied in Geraldton Building Co Pty Ltd v May (1977) 136 CLR 379 and Rodway v The Queen
(1990) 169 CLR 515
3 (1986) 72 ALR 23
4 Ibid at p 26, also see French J at pp 33-34
5 [1957] 1 WLR 1219
6 Ibid at 1222
7 [2011] FCA 333
8 Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 290 ALR 647 at [59] and [62]
per French CJ and Crennan J, and at [104] per Gummow and Hayne JJ
9 [2011] FCA 333 at [264]
10 Transcript at paragraphs [102] and [103]
