There a number of hurdles for an applicant in seeking a “stop bullying” order under the FWA, including that the employer must be a constitutional corporation.
The FWC’s Anti-Bullying Benchbook quotes from Stewart’s Guide to Employment Law:
“The issue of whether an employer is a constitutional corporation usually arises where the employer is a not-for-profit organisation in industries such as health, education, local government [my emphasis] and community services.”
In a recent anti-bullying matter before the FWC) Deputy President Kovacic was required to decide on whether a lawyer could represent the employer. The DP allowed legal representation because of a number of complex jurisdictional matters, including “…whether or not the health and community services provider is a ‘constitutionally covered business’”.
If this case proceeds, it will be an interesting how the DP will view each aspect of the jurisdictional issues, and how (if at all) it will impact on organisations that consider themselves to be “non-trading” entities.
The FWC recently published its first quarterly report on the anti-bullying measures that have been included in the Fair Work Act 2009 effective 1 January 2014.
In short there were 151 applications – with fundamentally no outcomes – somewhat underwhelming for the estimated deluge of claims that were expected. In summary:
- 23 matters withdrawn early in the process
- 16 resolved during proceedings
- 5 applications withdrawn prior to listed proceedings
- 4 applications withdrawn after proceedings but before a decision
President Ross, in his address the NSWIR society, stated that: “The flood of claims expected has not arrived, with about 50 claims being filed per month (against an anticipated rate of approximately 300 per month)”.
 Applicant v Respondents (AB2014/1169)  FWC 4198
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