Dallimore
[2023] FWC 988
•2 MAY 2023
| [2023] FWC 988 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
Dallimore
(SO2023/35)
| COMMISSIONER MCKINNON | SYDNEY, 2 MAY 2023 |
Application for an order to stop bullying at work – whether bullying occurred while at work in a constitutionally covered business
On 25 January 2023, Mr Ben Dallimore applied for orders to stop bullying at work under s.789FC of the Fair Work Act 2009 (the Fair Work Act). The Applicant is employed as a Teacher at Baden Powell College (the College). It may be accepted for present purposes that the alleged bullying at work occurred while Mr Dallimore was at work in the College.
Section 789FD of the Fair Work Act deals with when a worker is bullied at work. A worker is bullied at work if, while they are at work in a constitutionally-covered business, one or more individuals repeatedly behave unreasonably towards them and the behaviour creates a risk to health and safety.
The question is whether the College is a “constitutionally‑covered business” for the purposes of s.789FD(3) of the Fair Work Act. For the reasons that follow, I find that the College is not a constitutionally-covered business, and the Commission does not have jurisdiction to deal with Mr Dallimore’s application.
Consideration
Section 789FD of the Fair Work Act provides as follows:
“When is a worker bullied at work?
(1) A worker is bullied at work if:
(a) while the worker is at work in a constitutionally-covered business:
(i)an individual; or
(ii)a group of individuals;
repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member; and
(b) that behaviour creates a risk to health and safety.
(2) To avoid doubt, subsection (1) does not apply to reasonable management action carried out in a reasonable manner.
(3) If a person conducts a business or undertaking (within the meaning of the Work Health and Safety Act 2011) and either:
(a) the person is:
(i)a constitutional corporation; or
(ii)the Commonwealth; or
(iii)a Commonwealth authority; or
(iv)a body corporate incorporated in a Territory; or
(b) the business or undertaking is conducted principally in a Territory or Commonwealth place;
then the business or undertaking is a constitutionally-covered business.”
The College is a Victorian government school. Mr Dallimore is employed to work at the College as a member of the Government teaching service. He is employed by the Secretary to the Department of Education and Training (the Department), on behalf of the Crown in right of the State of Victoria, under section 2.4.3 of the Education and Training Reform Act 2006 (Vic) (the Education Act). The Secretary, on behalf of the Crown, employs teachers in the teaching service. Under Part 5.3 of the Education Act, the Secretary has all the rights, powers, authorities and duties of an employer in respect of employees in the teaching service. While as a matter of practice, the Secretary delegates responsibility for the efficient organisation, management and administration of schools to School Principals, the Secretary retains control and direction over the exercise of those responsibilities.
As the Secretary acts on behalf of the Crown in right of the State of Victoria, the State is the ‘person’ who conducts the business of Victorian government schools including the College. It does so through the Department and its Secretary. I accept the submission of Mr Dallimore that the State is a person who conducts a business or undertaking for the purposes of the Work Health and Safety Act 2011 (the WHS Act), and that he is a worker within the meaning of the WHS Act, for the purposes of s.789FC of the Fair Work Act.
However, one’s status as a worker is not enough to enliven the Commission’s jurisdiction to deal with bullying at work under s.789FC. As can be seen from the extract above, s.789FD requires the alleged bullying to have occurred “while the worker is at work in a constitutionally-covered business”.
The meaning of “constitutionally-covered business” is set out in s.789FD(3). A business or undertaking is a constitutionally-covered business if a person conducts a business or undertaking (within the meaning of the WHS Act) and one of the descriptions in s.789FD(3)(a) or (b) applies to the person or business/undertaking.
The College is a Victorian Government school established under section 2.2.1 of the Education Act. Its business or undertaking is conducted principally in Tarneit, Victoria, which is neither a Territory nor a Commonwealth place for the purposes of s.789FD(3)(b). The College is not a body corporate incorporated in a Territory (as per s.789FD(3)(a)(iv)) and it is not a Commonwealth authority (as per s.789FD(3)(a)(iii)). The Victorian Government is not the Commonwealth (including for the purposes of s.789FD(3)(a)(ii)).
That leaves the question of whether the College is a constitutional corporation for the purposes of s.789FD(3)(a)(i). “Constitutional corporation” is defined in s. 12 of the Fair Work Act as “a corporation to which paragraph 51(xx) of the Constitution applies”. Paragraph 51(xx) of the Constitution relevantly confers power on the Australian Parliament “to make laws… with respect to… foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth”. This can be distinguished from the Commonwealth’s power to make laws with respect to matters such as trade and commerce with other countries, and “among the States”.
As Hampton C observed in the case of Shoshana Amzalak[1], the Department is the statutory and administrative creation of the State of Victoria. Both the Department and the College are emanations of the Crown in right of that State. The State is not a corporation, either of the foreign, financial or trading kind, and nor is the College. The College is not a constitutional corporation.
Conclusion
This application seeks orders to stop bullying at work in relation to Mr Dallimore. The alleged bullying at work occurred while Mr Dallimore was at work in the College, as an employee of the Secretary to the Department in the Victorian Government teaching service.
None of the descriptions in s.789FD(3) apply in relation to the College. It is not a constitutionally-covered business for the purposes of the Fair Work Act.
It follows that Mr Dallimore cannot have been “bullied at work” as alleged for the purposes of s.789FD(1) of the Fair Work Act.
The application is dismissed.
COMMISSIONER
Appearances:
B Dallimore on his own behalf.
E Lett on behalf of the respondent.
Hearing details:
2023.
Sydney (by video):
April 26.
Printed by authority of the Commonwealth Government Printer
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[1] [2016] FWC 6590.
Printed by authority of the Commonwealth Government Printer
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