New bullying jurisdiction faces interesting challenge

The new anti-bullying jurisdiction was introduced to the Fair Work Commission on 1 January 2014. This means that employees may bring bullying complaints to the Fair Work Commission. Employers then respond, and the Commission then ‘deals’ with the complaint. This is likely to be in the form of a conference before a Commissioner, but may be via a hearing or conciliation. Recently, a carer in receipt of benefits from Centrelink brought a bullying complaint against the Department of Human Services.

The facts

Arnold Balthazaar receives payment under the Social Security Act 1991 (SS Act) to care for his daughter. He regularly attends a Centrelink office on the central coast to discuss his situation with staff, which is operated by the Department of Human Services. He alleged that the staff at the Centrelink office bully him. He further stated that he had an employment relationship with the Commonwealth as he is paid for his services as a carer to his daughter. The Commonwealth denied that any employment relationship existed.

What the Commission said

The Commonwealth lodged a jurisdictional objection that Mr Balthazaar was not an employee. Prior to hearing any bullying complaint, the Commission had to decide whether or not Mr Balthazaar was a ‘worker’ within the meaning of s789FC of the Fair Work Act 2009. The Commission held that payments received under the SS Act are not remuneration akin to wages provided by employers to employees. Mr Balthazaar was not an employee of the Department of Human Services and so the Commission’s anti-bullying jurisdiction did not apply to him.

What this means for you

The Commission is in the process of defining the scope of its new anti-bullying jurisdiction. While the Commission held that Mr Balthazaar was not a worker, the Commissioner took the opportunity to describe who else would not be a worker. The Commissioner said that student/teacher relationships or domestic work by family members were not ‘worker’ arrangements either.

Remember, reasonable management action is not considered bullying and no damages are awarded – the Commission simply seeks to prevent the bullying from reoccurring. If you need assistance in a bullying matter before the Commission, or would like to ensure your policies and procedures are up to date, please contact us.

Arnold Balthazaar v Raelene McGuire; Department of Human Services (Commonwealth) [2014] FWC 2076.

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