Alexander Masa

[2020] FWC 3114

[2020] FWC 3114

FAIR WORK COMMISSION

DECISION

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

Alexander Masa
(AB2020/358)

DEPUTY PRESIDENT CLANCY MELBOURNE, 12 JUNE 2020

Application for an FWC order to stop bullying.

[1] On 28 May 2020, Mr Alexander Masa made an application to the Fair Work Commission for an order to stop bullying under s.789FC of the Fair Work Act 2009 (FW Act).

[2] Mr Masa is employed by Queensland Health, which is a Department of the Government of the State of Queensland. I understand Queensland Health is established under s.14 of the Public Service Act 2008 (Qld).

[3] Queensland Health raised an issue of jurisdiction in that it submitted Mr Masa is not employed by a ‘constitutionally-covered business’ under s 789FD(3) of the FW Act because it is not any of:

•  A constitutional corporation;

•  The Commonwealth;

•  A Commonwealth authority;

•  A body corporate, incorporated in a Territory; or

•  A business or undertaking, conducted principally in a Territory or Commonwealth place.

[4] Queensland Health also submits that Mr Masa cannot be a worker under s.789FC(2) of the FW Act.

[5] On 12 June 2020, I conducted a telephone conference with the parties to discuss these jurisdictional objections. During the discussion, Queensland Health accepted the proposition that it is an employer which comes within the jurisdiction of Chapter 7 of the Industrial Relations Act 2006 (Qld) dealing with employees bullied at work.

[6] In these circumstances, I attempted to suggest to Mr Masa that in order to have the allegations he makes dealt with most expeditiously, he may wish to consider making an application for an order to stop bullying to the Queensland Industrial Relations Commission, rather than engage in a jurisdictional dispute at the Fair Work Commission. It was difficult to discern how much of what I was saying Mr Masa was actually prepared to listen to and whether he will now elect to proceed to make an application to the Queensland Industrial Relations Commission.

[7] Section 587(1) of the FW Act provides:

“587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.”

[8] Having regard to the circumstances of this matter, I am satisfied that it is appropriate that I exercise the broad discretionary power s.587 provides and dismiss Mr Masa’s application. I consider there is some force to the jurisdictional objections raised by Queensland Health and that the most expeditious way for Mr Masa to have the allegations he makes dealt with is for him to pursue an application for an order to stop bullying in the Queensland Industrial Relations Commission.

[9] Accordingly, Mr Masa’s application is dismissed under s.587 of the FW Act.

DEPUTY PRESIDENT

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