DECISION

Fair Work Act 2009
s.789FC - Application for an order to stop bullying

A.B.
(AB2014/1353)

COMMISSIONER HAMPTON

ADELAIDE, 30 SEPTEMBER 2014

Application for an FWC order to stop bullying - workplace conducted by State government department under the terms of State legislation - scope of anti-bullying jurisdiction discussed - whether workplace is constitutionally-covered - not conducted by the Commonwealth or in a Territory - whether trading or financial corporation - not a corporation - no jurisdiction - application dismissed.

1. Background

[1] On 28 July 2014, A.B. made an application for an order to stop bullying under s.789FC of the Fair Work Act 2009 (the FW Act).

[2] The application cited the Department of Education in New South Wales (the NSW Department) as his employer. It is evident from the application that A.B. is engaged to work at a school conducted by the NSW Department and the alleged bullying conduct is said to have occurred in that workplace.

[3] The NSW Department has raised a jurisdictional objection in relation to the matter; namely, that the workplace is not a constitutional-covered business and as a result, the application does not fall within the coverage of the anti-bullying provisions of the FW Act.

[4] The application was listed for a preliminary conference by telephone on 3 September 2014. Neither A.B., nor anyone acting on his behalf, participated in the conference or otherwise contacted the Commission.

[5] The NSW Department was represented in the conference by Mr Miles, its Chief Legal Officer, and pressed its jurisdictional objection. It did however recognise that A.B. should be afforded an additional opportunity to be heard on the issue.

[6] Following the conference, the Commission issued directions requiring A.B. to confirm whether he intended to proceed with the application, explain his non-participation in the conference and provide a response to the jurisdictional issue.

[7] On 6 September 2014, A.B contacted the Commission in response to the directions and provided an explanation for his non-participation in the conference and confirmed that he wanted to continue with the application. However, A.B. did not provide any submissions in relation to whether the Commission has jurisdiction to deal with the matter given the jurisdictional objections raised by the NSW Department.

[8] Subsequently, on 10 September 2014 the Commission sent further correspondence to provide A.B. with an additional opportunity to contest the following facts as asserted by the NSW Department:

“The applicant worker was employed as a teacher in a NSW government school. He is employed pursuant to the Teaching Service Act 1980, and at all material times his employment is subject to that Act.

Section 44(2) of the Teaching Service Act provides “Those persons [employed in the teaching service] are taken to be employed by the Government of New South Wales in the service of the Crown.”

Section 11 of the Act provides that where the Secretary of the Department of Education and Communities exercises an employment function under the Act, he or…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading A.B.

Details

AGLC: A.B. [2014] FWC 6723
Case: [2014] FWC 6723
Decision Date: 30 SEPTEMBER 2014

CaseChat Overview and Summary

In this matter, the Fair Work Commission (FWC) was approached by an employee seeking an order to stop alleged bullying at their workplace, which was conducted by a state government department. The dispute arose under the legislative framework established by the Commonwealth for preventing and addressing workplace bullying. The court had to determine whether the FWC had jurisdiction to hear and determine the matter, given the specific constitutional and legislative parameters governing federal workplace relations powers.

The central legal issue before the court was whether the workplace in question was constitutionally covered by the federal legislative scheme. Given that the workplace was operated by a state government department, and not by the Commonwealth or within a Territory, the court had to assess whether the workplace fell within the category of a trading or financial corporation. Additionally, the court examined whether the workplace could be classified as a corporation under the relevant provisions of the Constitution. Ultimately, the court concluded that the workplace did not meet the criteria for federal jurisdiction, as it was neither a Commonwealth entity nor a corporation as defined under the applicable legislation.

The court reasoned that the anti-bullying jurisdiction of the FWC is restricted to workplaces that are either conducted by the Commonwealth or a corporation within the scope of the federal legislative powers. Since the workplace in question was conducted by a state government department, and not a corporation, the court found that there was no jurisdictional basis for the FWC to entertain the application. Consequently, the application was dismissed for lack of jurisdiction. The court’s decision underscores the importance of ensuring that jurisdictional boundaries are respected in workplace relations matters, particularly when involving state entities.

Orders