New Anti-Bullying Jurisdiction Comes into Effect, but with Exclusions

Tuesday 7 January 2014 @ 10.14 a.m. | Industrial Law

The new anti-bullying jurisdiction has taken effect as of 1 January 2014. However, a raft of exclusions mean that some employers may not need to submit to the new scheme. 

The relevant provisions in the Fair Work Act 2009 (CTH) are reliant on the Commonwealth’s corporations power, which means that a worker will be able to bring a claim of bullying to the Fair Work Commission only if the bullying occurred while the worker was employed in a “constitutionally-covered business”. Under the Act, this includes a business or undertaking conducted principally in a Territory or Commonwealth place. Alternatively, coverage will also extent to the business or undertaking if the person or entity conducting it is a constitutional corporation, the Commonwealth, a Commonwealth Authority or a body corporate incorporated in a Territory.

However, this definition does not encompass either State governments or unincorporated bodies such as partnerships, sole traders, not-for-profit associations, and volunteer associations. These exclusions may effect a wide range of employees. Many accounting and law firms have not been converted into corporate entities, and not-for-profit organisations in industries such as health, education, local government and community services will not be covered. The majority of Australians are employed by small businesses, the anti-bullying jurisdiction will exclude those operating as sole traders. Workers in these environments will not be able to bring an application in the Commission to stop bullying.

The Commission has released a draft anti-bullying benchbook and draft anti-bullying case management model, which will offer employers guidance on these jurisdictional issues. The documents contain information regarding the types of businesses that the Commission anticipates will be covered by the anti-bullying jurisdiction.

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