Friday, 10 April 2015 2:32pm
The Fair Work Act is quiet on who can be subjected to an anti-bullying order, and employers could be forced to stop dealing with particular customers or suppliers accused of bullying, according to IR expert Professor Andrew Stewart.
In the fifth edition of his seminal Stewart's Guide to Employment Law, the University of Adelaide Professor of Law says there are aspects of the Fair Work Commission's anti-bullying jurisdiction, which started in January last year, "that remain uncertain".
He says that while the Fair Work Act 2009 specifies who can apply for a s789FF order to stop workplace bullying (a person who is a "worker" within the meaning of the model WHS Act, and works at a constitutionally-covered business), "nothing is said about who may be the subject of an order".
"Technically, indeed, there is no 'respondent ' or 'defendant' in these proceedings," Stewart says.
"In most cases, orders will be sought against an employer, or one or more co-workers, and they will generally be treated by the tribunal as if they were 'parties' to the proceeding.
"But on the face of it orders could be sought against a customer, or a union official, or anyone else whose repeated and unreasonable conduct impacts on the applicant at work.
"Or an order might be sought requiring an employer to discipline or even dismiss another worker, or cease dealing with a particular customer or supplier."
According to the FWC's anti-bullying benchbook, the Fair Work Act's anti-bullying measures are underpinned by the corporations power, allowing the Commission to regulate and impose obligations on any constitutionally-covered business, its employees and "others whose conduct is capable of affecting its activities".
Meanwhile, the explanatory memorandum for the Fair Work Amendment Bill 2013, which established the anti-bullying jurisdiction, contemplates orders being made against workplace visitors, or those who make threats "outside the workplace, if the threats relate to work".
Stewart says the "extent to which the FWC might be willing to make such orders" will remain unclear until further cases are decided.
To date, the Commission has made only one formal stop-bullying order, which was subsequently amended and ultimately revoked after the applicant submitted that the conflict between her and a bully had ceased. See these related articles:
Stewart notes that the FWC has no formal power to refuse a valid stop-bullying application or direct an applicant to seek relief elsewhere (by notifying a safety regulator or suing at common law, for example).
"But in practice the FWC has adopted 'triage' procedures that seek to deter some claims, steer others elsewhere, or persuade those concerned to resolve their differences through mediation," he says.
The new edition of Stewart's Guide to Employment Law examines all changes made by the Fair Work Amendment Bill 2013; recent developments in WHS and workers' comp laws; the High Court's 2014 decision on whether there is an implied duty of "mutual trust and confidence" in employment relationships (see related article); and whether employers can dismiss employees for "offensive" conduct during otherwise lawful union activities.
Stewart told OHS Alert's associate publication Workplace Express that the fifth edition analyses 250 court and tribunal decisions delivered since the last edition was published in 2013.