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Full Bench confirms the Fair Work Commission’s broad anti-bullying powers

02 April 2019

The Full Bench of the Fair Work Commission (Commission) has this month reiterated the broad powers of the Commission when it comes to preventing workers from being bullied at work.

Interim orders are, as their name suggests, orders made in circumstances where it is necessary to put measures in place on a temporary (or interim) basis pending the ultimate determination of a case (in the context of this article, an anti-bullying application).

The decision brought before the Full Bench on appeal in South Eastern Sydney Local Health District v Kusum Lal [2019] FWCFB 1475, involved interim orders made by the Commission to the effect that a hospital employee was to be placed in an alternative position in another hospital operated by the employer until her principal application (which essentially sought permanent anti-bullying orders) was heard by the Commission.  The employer appealed the decision, arguing that it was not within the powers of the Commission to make an interim order of that nature, effectively because the order was not directed at stopping bullying behaviour and it appointed the worker to another position.

The Full Bench refused the employer permission to appeal on the basis that:

  • The Fair Work Act 2009 makes it clear that the Commission has “a wide discretion to make such orders as it considers appropriate to serve the purpose of preventing an employee being bullied at work by the person or persons the subject of an anti-bullying application”;
  • The only jurisdictional limitation upon the Commission in the making of interim orders in anti-bullying matters is that the orders must not involve the payment of a pecuniary amount;
  • The interim orders made:
    • suitably served the purpose of preventing the employee from being bullied at work in the manner the employee’s application alleged; and
    • were not directed at providing payment of a pecuniary amount to the employee so as to put the orders outside of the Commission’s jurisdiction.

 

When will making interim anti-bullying orders be appropriate?

That the Commission holds a wide discretion in the making of interim anti-bullying orders is clear.

Interim orders in anti-bullying matters will be appropriate where:

  • There is a continuing risk to a worker’s health and safety;
  • The Commission considers that there is a prima facie case (that is, if the evidence supports the allegations made by the worker, there is a sufficient likelihood that the worker will be entitled to relief);
  • The inconvenience or injury to the employee caused by refusing the orders outweighs the injury the employer would suffer from the order; and
  • Imposing the order will not cause the employer any irreparable, significant or identifiable damage.

 

What does this mean for employers?

The decision in this case confirms the Commission’s broad powers when it comes to both making interim orders, and deciding what those orders will involve. This means that the types of orders which the Commission may make are vast and can, as in this case, include things like:

  • Requiring an employer to physically separate a worker who is an applicant in anti-bullying proceedings from the alleged bully/s; or
  • Ordering that a worker be placed in an alternative role.

An employer facing an interim order in a similar situation should consider determining and proposing at an early point in time, interim orders which will both: serve the purpose of preventing a worker from being bullied by the alleged bully/s (thereby minimising the ongoing health and safety risks); and be suitable to the business’ operational and workplace requirements.  Whilst ultimately the content of any order made will be in the Commission’s (broad) discretion, proposing terms may be more likely to result in an order which is suitable for the employer’s business.

 

If you require further information or have any queries in relation to this alert, please feel free to contact Matthew Smith or Michelle Dawson.

 

Acknowledgements:

We would like to acknowledge the contribution of Hannah Plater to this article.

Further Reading

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