Agrial Leung

[2021] FWC 1691

[2021] FWC 1691

FAIR WORK COMMISSION

DECISION

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

Agrial Leung
(AB2021/88)

DEPUTY PRESIDENT BOYCE SYDNEY, 31 MARCH 2021

Application for an FWC order to stop bullying.

[1] On 21 February 2021, Agrial Leung (Applicant) applied to the Fair Work Commission (Commission) for orders to stop bullying under s.789FC of the Fair Work Act 2009 (Act). Such orders were sought against Indochinese Aged Care Services (First Respondent) and Mr Tony Luo (Second Respondent).

[2] A conciliation occurred by telephone before me on 22 March 2021. Subsequently, the parties made written submissions going to the following jurisdictional issues raised by the Respondents:

(a) As the Applicant was engaged through a corporation of which she is a Director, the relationship between the Applicant and the Respondent was between two constitutional corporations, and not between a constitutional corporation and a ‘worker’ as defined in s.789C(2) of the Act;

(b) There is no suggestion of “repeated” behaviour that would indicate “bullying” as defined in s.789FD(1)(a) of the Act; and

(c) There is no longer any relationship between the parties in that the First Respondent no longer engages the services of the Applicant.

[3] The Applicant filed written submissions on 22 March, and the Respondent filed written submissions in reply on 23 March.

[4] It is apparent to me, on the basis of the uncontested facts before the Commission, and having regard to the respective written submissions between the parties, that all of the Respondents’ jurisdictional objections are sustained.

[5] I therefore find that the Commission has no jurisdiction to deal with the Application filed on 21 February 2021.

[6] The Application is dismissed for want of jurisdiction, and pursuant to s.587(1)(c) of the Act. An order to this effect will be published with this decision.

DEPUTY PRESIDENT

Appearances:

Ms A Leung for the Applicant

Mr T Luo for the Person Named

Mr K Kutasi, Solicitor (Solve Legal) for the Respondent

Hearing details:

2021
Sydney
22 March

Final written submissions:

2021

22 March Applicant
23 March Respondent

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