New Anti-bullying Amendments to Fair Work 2009 : What does it mean for Government?
Speakers • Hayley Petrony , Assistant Victorian Government Solicitor • Alison O’Brien , Assistant Victorian Government Solicitor • Rachel Amamoo , Managing Principal Solicitor • David Catanese , Principal Solicitor • Vicki Moulatsiotis , Principal Solicitor • Jonathan Bayly , Principal Solicitor • Hannah Brown , Principal Solicitor • Katherine Francis , Senior Solicitor • Matt Garozzo , Solicitor
“I know there isn’t no beast – not with claws and all that, I mean- but I know there isn’t no fear, either” Piggy Paused. Ralph moved restlessly. “Unless what?” “Unless we get frightened of people” - William Golding; Lord of the Flies.
Fair Work Act 2009 (Cth) Public Administration Act 2004 (Vic)) Tort Law Negligence Employment Contract ANTI-BULLYING JURISDICTION Industrial Instruments made under the Fair Work Act 2009 (Cth), i.e. the VPS Determination Anti-discrimination laws: State/Commonwealth Accident Compensation Act 1985 (Vic) Occupational Health and Safety Act 2004 (Vic) Brodie’s Law
What is bullying? Workplace bullying is repeated , unreasonable behaviour directed toward an employee, or group of employees, that creates a risk to health and safety. Within this definition: • ‘unreasonable behaviour’ means behaviour that a reasonable person, having regard to all the circumstances, would expect to victimise, humiliate, undermine or threaten; • ‘behaviour’ includes actions of individuals or a group, and may involve using a system of work as a means of victimising, humiliating, undermining or threatening; • ‘risk to health and safety’ includes risk to the mental or physical health of the employee. Worksafe Victoria Guidance Note
New Legislative Provisions Section 789FD When is a worker 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. A worker is an individual who performs work in any capacity, including as an employee, a contractor, a subcontractor, an outworker, an apprentice, a trainee, a student gaining work experience or a volunteer.
Examples of bullying: • abusive, insulting or offensive language or comments • unjustified criticism or complaints • excluding, isolating or marginalising a person from normal work activities • withholding information that is vital for effective work performance • unreasonably overloading a person with work or not providing enough work • setting unreasonable timelines or constantly changing deadlines
Further examples of bullying: • setting tasks that are unreasonably below or beyond a person’s skill level • denying access to information, supervision, consultation or resources such that it has a detriment to the worker • spreading misinformation or malicious rumours • changing work arrangements, such as rosters and leave, to the detriment of a worker or workers • unreasonable treatment in relation to accessing workplace entitlements such as leave or training
What is not bullying Bullying does not include: • reasonable management action carried out in a reasonable manner • Performance management or disciplinary action – if reasonable • A single aggravated incident will not constitute bullying
Application to FWC to stop bullying • FWC must start to deal with an application within 14 days. • FWC can: – Inform itself of the matter; – Conduct a conference; or – Hold a hearing.
What must FWC take into account? • Investigation report • Grievance or dispute procedure • Outcome of grievance procedure
Orders to Stop Bullying • If FWC is satisfied that: – the worker has been bullied at work by an individual or group of individuals; and – there is a risk that the worker will continue to be bullied at work by the individual or group of individuals then FWC may make any order it considers appropriate to prevent the worker from being bullied. • FWC does not have power to order compensation.
Examples of orders • FWC may issue orders requiring: – Review of bullying policies – Removal of employees from proximity of the person(s) who instigate the bullying behaviour – Regular monitoring of behaviours in the workplace – Workplace training – Referral to WorkSafe Victoria where it considers this necessary and appropriate. • FWC can not reinstate an employee or award compensation.
Contravening an order made by the Fair Work Commission • A person to whom an order applies must not contravene a term of the order • Enforcement applications can be made to the Federal Court or Federal Magistrates’ Court for civil remedies. • The maximum penalty is a civil fine of: – $10,200 for an individual person – $51,000 for a corporation
Constitutional Foundations – Anti-Bullying Amendments have a narrow application – No s.109 inconsistency issues – The key issue turns on the identification of constitutional corporations.
Commonwealth Legislative Power With Respect to Corporations
Section 51(xx) The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: … (xx) foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth;
Trading Corporation: The Football Case (1979) 143 CLR 190 • “A corporation formed within the limits of Australia will satisfy the description “trading corporation” if trading is a substantial corporate activity” - Barwick CJ • “Essentially it is a description or label given to a corporation when its trading activities form a sufficiently significant proportion of its overall activities as to merit its description as a trading corporation” - Mason J
Financial Corporation: State Superannuation Board (1982) 150 CLR 282 • “A corporation which engages in financial activities” – Mason, Murphy and Deane JJ
Indicia of Trading Status • Aboriginal Legal Service of Western Australia (Inc) v Lawrence (2008) 37 WAR 450; Hughes v Western Australian Cricket Association (1986) 120 FCR 191. • Eight principles identified by Toohey J and Steytler P.
Principle 1 • A corporation may be a trading corporation even though trading is not its predominant or principal activity.
Principle 2 • However, trading must be a substantial or significant and not merely a peripheral activity. Look at both the relative and the absolute significance of trading as a corporate activity.
Principle 3 • Trade includes the purchase and sale of goods and services. It is not limited to the exchange of commodities.
Principle 4 • The making of a profit is not an essential prerequisite to trade, but it is a usual concomitant.
Principle 5 • The purpose of trade is irrelevant. Trade used to generate income for a charitable or other non-commercial purpose is still trade.
Principle 6 • Whether the trading activities of a corporation are sufficient to make it a trading corporation is a question of fact and degree.
Principle 7 • The current activities of the corporation are a major criterion. However, regard may also be had to the intended purpose of the corporation, especially if the corporation is newly formed or its functions are limited by statute.
Principle 8 • The commercial nature of an activity is a significant element in deciding whether the activity is in trade or trading.
Example 1 • A statutory corporation empowered to construct public works for the purpose of generating electricity and to carry on the business of providing electricity to customers in the State of Tasmania. • Held to be a trading corporation: The Commonwealth v Tasmania (1983) 158 CLR 1
Example 2 • A statutory corporation charged with managing the superannuation entitlements of public servants; empowered to provide commercial loans to public servants. • Held to be a financial corporation: State Superannuation Board v Trade Practices Commission (1982) 150 CLR 281
Example 3 • The Metropolitan Fire And Emergency Services Board established by statute to prevent and suppress fires; also entered into substantial commercial arrangements for servicing of fire equipment. • Held to be a trading corporation: United Firefighters’ Union v MFESB (1998) 83 FCR 346
Example 4 • A public hospital incorporated by statute and owned by the State of New South Wales; major source of income was government subsidy, but also charged fees to patients for medical services. • Held to be a trading corporation: E v Australian Red Cross Society (1991) 27 FCR 310
Example 5 • The University of Western Australia established by statute; entered into significant commercial property transactions, sold publications, rented student accommodation and carried on a technology business. • Held to be a trading corporation: Quickenden v O’Connor (2001) 109 FCR 243
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