AFEI Online Employers Adviser Article

 

Case Update: The Fair Work Commission pushes the

boundaries of its powers in the anti-bullying jurisdiction

Published: 7 May 2015

It’s now over 12 months into the Fair Work Commission’s (Commission) anti-bullying jurisdiction and, despite the alleged bullying epidemic in Australian workplaces, there are only a small number of cases where the Commission has issued a decision.  To date only two orders have been made.

Whilst this could be seen as a positive, a closer inspection of the cases where orders have been handed down and the content of those orders suggests that employer fears about unreasonable interference by the Commission into the domestic affairs of a business are not unwarranted. They also demonstrate that the Commission may, in fact, have over reached in the exercise of power under the anti-bullying provisions of the Fair Work Act 2009 (FWA).

 

Anti-bullying powers

The Commission’s anti-bullying powers give it broad discretion to grant any order other than compensation or reinstatement. However, before it can issue any order the Commission must be satisfied of two jurisdictional facts — they are that:
      1.    the applicant has been bullied; and
      2.    there is an ongoing risk of bullying.

If the Commission is not satisfied of both these jurisdictional facts it has no power to make an anti-bullying order.

 

Some recent case examples where dubious orders/recommendations

have been issued

In Applicant (AB2014/1531, 29 April 2015), Senior Deputy President Drake issued the following ‘Recommendation’:

  “Application for an FWC order to stop bullying.

[1] I have conducted conferences and hearings in relation to this application. As a consequence I have decided to issue a Recommendation, which is set out below.

RECOMMENDATION

[2] The Canteen Committee of the Respondent P and C Association (P and C) will be disbanded as soon as practicable.
[3] The functions of the Canteen Committee will thereafter be organised within the ordinary functions of the P and C.
[4] The Applicant’s management functions will be recognised by an additional payment per hour to be negotiated and settled by the President of the P and C.
[5] Immediately following the issue of this Recommendation the Applicant and the President of the P and C will meet and discuss the future organisational arrangements for the canteen.
[6] Any necessary dealings between the P and C and the Applicant will be conducted by the President of the P and C.”

It is not evident from this ‘Recommendation’ that the Commission has made a finding that the applicant was bullied or that they are at risk of further bullying. Therefore, it is not evident from the decision that the Commission had any power to make any anti-bullying order at all. It is also unclear just what force a ‘Recommendation’ carries or whether the Commission even has the power to make one.

What is clear, however, is that the ‘Recommendation’ is far reaching. For example, it concerns the governance of the organisation and goes so far as to recommend that the applicant’s remuneration should be increased. In our view, a ‘Recommendation’ of this nature is clearly an unreasonable interference by the Commission into matters that are generally within the exclusive purview of the managerial prerogative.

Unfortunately, this case is not isolated. In Applicant v Company A Pty Ltd & Ors (2014/1419, 15 September 2014), Commissioner Williams ordered, among other things:

  [4] The Applicant and the Third Respondent agree they will be subject to mutual agreement made on a without admission basis that they will each do as follows:

b) going forward the Applicant and the Third Respondent will be civil to one another and in respect of one another and refrain from statements and communications that are abusive, offensive and or disparaging to each other;

d) only contact each other via email between the hours of 9.00 a.m. and 5.00 p.m., Monday to Friday, limited to no more than three emails per day, except in the case of emergency;

In this case it is evident that the applicant and third respondent agreed to the orders issued. However, it is also clear they did so without prejudice and without admitting to any bullying. In this case, therefore, the Commission has issued an anti-bullying order, which necessarily affects rights and interests, and which clearly affects the rights of the business to manage its operations, without first finding that bullying had occurred or that there was an ongoing risk of bullying. In this context the order itself is clearly beyond the Commission’s power and another example of the Commission interfering into the domestic affairs of a business.

 

What do the cases demonstrate?

These cases demonstrate that the Commission is willing to push the boundaries of its powers to ‘assist’ in the resolution of workplace bullying disputes. In our view, this is not a proper use of the Commission’s powers and employers should be careful not to submit to such a process without thorough consideration of what it means to be subject to a Commission order. If you, as an employer, want to propose solutions to disputes, we encourage this, however, we also caution against conceding to the inclusion of any such solution in an order of the Commission.



More information?

If you are served with an application for an anti-bullying order, please contact the AFEI Hotline on 02 9264 2000 for advice.


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