A plug for the ACT’s workplace protection orders

Employers in the ACT are able to apply for “workplace orders” (WPOs) which are a form of protection order restraining the respondent from engaging in “personal violence in relation to the workplace”.^[1] While ACT legislation enabling the creation of WPOs has been in effect since 2002^[2], the ACT remains the only Australian jurisdiction in which there is a specific regime for employers to apply for protection orders to protect their employees. This article outlines the key features of this relatively unnoticed jurisdiction and advocates its benefits.

Who can apply for workplace protection orders?

Under the Domestic Violence and Protection Orders Act 2008 (ACT) (DVPO Act), “aggrieved persons” may apply for protection orders.^[3] For protections orders that are WPOs, unless the workplace is a child facility, the aggrieved person is “the employer of the person against whom the conduct is directed”.^[4] For child facilities, persons in control of the child facility and employees of the child facility may also apply for WPOs.^[5]

Employees may, of course, still seek non-WPO protection orders to protect themselves from violence that may occur at the workplace. However, for WPOs, the applicant must, in almost all cases, be the employer.

The criteria that apply to make a WPO 

Broad discretion in the court

The Magistrates Court has a broad discretion to make WPOs. For the court to make a final WPO where the employer is not a child facility^[6], it must be satisfied that the respondent:^[7]

• has engaged in personal violence in relation to the workplace; and
• may engage in personal violence in relation to the workplace during the time the order is proposed to operate if the order is not made.

“Personal violence in relation to the workplace” is given a broad definition which includes conduct that is “harassing or offensive to an employee in the employee’s capacity as an employee at the workplace”.^[8] The court is not required to make a WPO if the above two criteria are satisfied. Rather, satisfaction of these criteria means the court may make such orders, and the court must consider several criteria prior to doing so.^[9] This leaves the court with considerable discretion over whether or not to make a WPO.

Interim WPOs

There is a higher threshold to obtain interim WPOs, which are generally made on the day the applicant applies for a WPO, and which generally apply until the application for the final WPO is decided. Usually, it will be necessary for the court to be “satisfied that it is necessary to make the interim order” to ensure the safety of the employer, employee or other people at the workplace, or to “prevent substantial damage to the property” of the employer, employee or other people at the workplace.^[10] This higher standard for making interim WPOs reflects that fact that hearings for interim WPOs are usually heard ex parte. The legislation recognises that orders should sometimes be made in these circumstances but only when the orders are “necessary” to ensure a person’s safety or prevent substantial damage to property.

What can WPOs do?

Restraining personal violence in the workplace

While section 54(1) of the DVPO Act states that a WPO “may contain the conditions or prohibitions the Magistrates Court considers necessary or desirable”, the definition of a WPO makes it clear that a WPO is designed to restrain the respondent from engaging in personal violence in relation to the workplace.^[11] In this way, preventing personal violence in relation to the workplace should guide what orders a WPO should include.

Determining what orders a WPO should include involves weighing the interests of the parties to the dispute and other affected persons. If a WPO is made, it must be the order “that is least restrictive of the personal rights and liberties of the respondent as possible that still achieves the objects of the Act and gives effect to” the principle that the paramount consideration is “the need to ensure that employees and other people at the workplace are protected from personal violence at the workplace”.^[12] This lengthy statement outlines the key considerations that will pull the court two ways when making an order: on the one hand, the rights and freedoms of the respondent, and on the other hand, the need to protect persons from personal violence in relation to the workplace.^[13]

Content of orders

Section 54(2) lists things WPOs “may do”. Typically, a WPO will include orders prohibiting the respondent from:

• entering the workplace;
• being within a particular distance of the workplace;
• contacting employees at the workplace;
• damaging property at the workplace; and/or
• contacting the workplace via a certain means (for example, other than by writing).

Protection both at work and outside work

Importantly, orders can protect employees both at and outside the workplace. This was made clear by Higgins CJ in Firestone v Australian National University,^[14] which was decided under old legislation that is analogous in relevant respects to the current legislation.^[15]

In this case, the Magistrates Court, on application by the Australian National University (ANU), made a WPO preventing Mr Firestone from “contacting an employee of [the ANU]”.^[16] Mr Firestone challenged the validity of this order. Higgins CJ found that this order was “defective” in that it should have listed the particular employees of the ANU whom Mr Firestone was prohibited from contacting “at the workplace or at home”.^[17] Clearly, when dealing with a big employer like the ANU in a small place like Canberra, the respondent may have inadvertently contravened the order by contacting an employee of ANU. Therefore, it went too far in restricting the respondent’s rights and liberties.^[18]

Nonetheless, Higgins CJ found that a WPO could legitimately protect employees outside the workplace.^[19] In coming to this view, Higgins CJ found that personal violence in relation to the workplace is not limited to conduct engaged in at the workplace but can extend, at least in certain circumstances, to conduct that has “as its nexus the relevant employee’s status and function as such”.^[20]

Duration of orders

Orders last for up to 1 year^[21] and can be extended upon application.^[22]

The process for obtaining a WPO

The procedures under the DVPO Act “are to be as simple, quick and inexpensive as is consistent with achieving justice”.^[23] Improbably, in my and other practitioners’ experience, the procedures for obtaining WPOs are actually simple, quick and inexpensive. They are broadly consistent with the procedures for obtaining a domestic violence or personal protection orders.

If there are sufficient grounds to apply for an interim WPO, and not just a final WPO, the first step will be to attend the ACT Magistrates Court, make an application and be ready to be heard. Generally, the matter will be heard on the day of the application and it must be listed not later than two days after the application is made.^[24] The application does not need to be served on the respondent before an interim order is made^[25] and the hearing will generally be conducted in the absence of the respondent.

The court organises service of the application and, if applicable, the interim orders on the respondent.^[26] If an interim order is made, a return date is set for some time at least 21 days after the interim order is made.^[27] If no interim order is sought, the matter must be listed a maximum of 2 days after the application is made or, if the registrar is satisfied that a longer time is necessary to allow the respondent to be served (it usually is), up to 10 days.^[28]

Importantly, in my and other practitioners’ experience, WPOs can usually be obtained without having the threatened person or persons provide evidence. This is a significant advantage over non-WPO protection orders, where applicants often have to give evidence of the events justifying the order. While the rules of evidence do apply to these proceedings, the Magistrates Court generally runs them in an informal fashion, fitting with the purposes of the DVPO Act.^[29] The use of business records (eg. incidents reports and, sometimes, emails), combined with evidence from managers and human resource practitioners, will generally be enough to establish that personal violence in relation to the workplace has occurred and may occur during the time the proposed WPO is intended to operate.

Effect of contravention

So long as the respondent has been personally served with a copy of the WPO, or the respondent was present when the WPO was made, contravention of a WPO is an offence.^[30] The maximum penalty is 500 penalty units (currently $75,000)^[31] or 5 years’ imprisonment, or both.

A quick plug

Ensuring safety of workers

WPOs can be a useful tool for employers trying to ensure the safety of their workers from threatening or harassing individuals. Work health and safety legislation imposes an obligation on employers to ensure, so far as is reasonably practicable, the health and safety of workers engaged by them while they are at work.^[32]

Nonetheless, employers faced with threatening customers, employees (who are hopefully on the way out), ex-employees and other persons, often have little practical recourse in response to such threats. Calling the police is often ineffective for dealing with low-level harassment and threats; trespass does not cover all such threatening conduct; and non-legal measures, such as physical restrictions or increased security, are not always practicable. The ability of employers to obtain legally enforceable orders preventing persons from contacting employees, attending the workplace and engaging in personal violence in relation to the workplace, among other potential orders, is a handy tool to put in the employer’s toolkit.

WPOs do not create new rights or obligations in employment relationships

Of course, employers already operate in a complex legal framework and some employers may not have the knowledge or capacity to seek a WPO in all instances. It is important, therefore, that section 51 of the DVPO Act states that the availability of WPOs “does not create a new right or obligation in relation to employment relationships”. The Bill’s Explanatory Statement explains that the legislation “is not intended to give rise to a cause of action by an employee against an employer who does not apply for a workplace order”.^[33] This should ease concerns that this legislation enforces further regulations and work health and safety obligations on employers.

Are there unintended outcomes of the legislation?

Whenever introducing legislation, it is also, of course, important to consider any other unexpected outcomes that may arise. The ACT’s experience should reassure any jurisdictions considering introducing similar legislation. It has proven to be a small, but useful, area of law. In the 2014–15 annual year, 29 WPOs were made,^[34] across a population of about 390,000.^[35] Orders have been made in relation to government service centres, shopping centres, educational facilities and politicians’ offices.^[36] One area that springs to mind, as a potential unexpected application, is if orders are taken out against aggressive union representatives. However, if a union representative engages in violent, threatening or harassing conduct, and a Magistrate is satisfied it is appropriate to make a WPO in all the circumstances, there is a strong argument that this is a positive outcome. Indeed, the broad discretion of Magistrates to make, or not make, WPOs, is likely to be an advantage in protecting against any inappropriate use of WPOs.

This article was first published in Employment Law Bulletin, Vol 22 No 9, October 2016.