David Mobbs
[2019] FWC 1292
•1 MARCH 2019
| [2019] FWC 1292 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
David Mobbs
(AB2019/60)
COMMISSIONER HAMPTON | ADELAIDE, 1 MARCH 2019 |
Application for an FWC order to stop bullying – workplace conducted by sole operator – whether application within the scope of the stop bullying jurisdiction – relevance of national system employer – whether workplace is constitutionally covered – not conducted by the Commonwealth or in a Territory – not a corporation – no jurisdiction – application dismissed.
1. The application
[1] David Mobbs has made an application under s.789FC of the Fair Work Act 2009 (the FW Act) for an order to stop bullying conduct he alleges has taken place, and may in the future take place, within his workplace. Mr Mobbs is employed by Mr Myles Wenban, who trades as DIY RV Solutions in Queensland.
[2] During the course of a preliminary conference conducted in this matter the parties participated in a constructive discussion about the (mostly) disputed circumstances leading to the application, but importantly, a number of initiatives that Mr Wenban had already put in place, or had proposed, to better manage the workplace. Mr Mobbs also made a number of additional proposals that were constructive and taken on board by Mr Wenban.
[3] Although there were grounds to consider that the parties might build upon those discussions to significantly advance a resolution of some or all of the issues that each had raised in their submissions to the Commission, Mr Mobbs confirmed that he was ultimately seeking an order of the Commission to enforce any agreed outcome.
[4] In that light, it has become necessary for the Commission to deal with a jurisdictional issue about whether this application can be dealt with by the Commission utilising the anti-bullying provisions of the FW Act.
2. The immediate issue
[5] The immediate issue arises from the nature of Mr Mobb’s employer, or more particularly, the characterisation of the workplace in which he is engaged for present purposes.
[6] This follows from the coverage of the anti-bullying provisions of the FW Act and its reliance upon the concept of a constitutionally-covered workplace.
[7] During the course of the preliminary conference, Mr Wenban confirmed that he was a sole operator of the business and understood that as a result, the application could not be heard by the Commission. Mr Mobbs accepted the factual basis of the proposition advanced by Mr Wenban and acknowledged that this might mean that he was not engaged in a constitutionally-covered workplace as he understood that term. However, Mr Mobbs contended, in effect, that this would leave himself and many others in Australia’s workplaces “unprotected” by the anti-bullying jurisdiction and that this “could not be right”.
[8] Both parties indicated that they wished the Commission to determine the matter based upon the contributions that had been made to that point and did not seek the opportunity to further research the issue, take advice, or make additional submissions.
3. The coverage of the anti-bullying provisions of the FW Act
[9] The coverage of this Part of the FW Act was extensively dealt with in Ms SW1, A.B2, and later in Amazalak. 3 Without repeating all of that consideration and findings, the following is relevant to this matter.
[10] A significant portion of the FW Act relies upon the definition of “national system employee” and “national system employer” in ss.13 and 14 respectively. In States that have made referrals of certain powers to the Commonwealth,4 that definition is extended by virtue of ss.30C, 30D, 30M and 30N to include other parties in the relevant State.
[11] Queensland is a referring State and the extended definition of national system parties applies in that State.
[12] Importantly, the coverage of the anti-bullying provisions in Part 6-4B of the FW Act is not based upon the definition of national system parties or the referral of powers by most States, including Queensland. This is evident from the express terms of the FW Act discussed below.
[13] In order for the anti-bullying jurisdiction to be engaged, the Commission must find that a worker has been bullied at work within the meaning of the FW Act. Section 789FD is in the following terms:
“789FD 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.”
[14] The initial focus of the definition is the workplace where the applicant is at work when the alleged unreasonable conduct takes place. That is, the conduct must take place whilst the worker is at work in a constitutionally-covered business. As a result, s.789FD(3) requires the Commission to consider the nature, or in some cases – the location, of the legal person conducting the business or undertaking.
[15] The workplace in this matter is not located in a Territory5 and there is no suggestion that it is conducted by the Commonwealth or a Commonwealth authority. As a result, this workplace will only be a constitutionally-covered business if it is conducted by a (legal) person that is a constitutional corporation.
[16] The term “constitutional corporation” is defined in s.12 of the FW Act in the following terms:
“constitutional corporation means a corporation to which paragraph 51(xx) of the Constitution applies.”
[17] The Australian Constitution, in effect, defines “constitutional corporations” as follows:
“Foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth.”6
[18] The above sets out the jurisdictional and statutory basis for the stop-bullying jurisdiction. The Commission is a statutory tribunal and has no inherent jurisdiction. It is empowered to deal with matters, and limited not to determine matters, by the terms of the FW Act. Although, as Mr Mobbs contends, this coverage leaves some workplaces conducted in the private sector by sole (non-corporate) proprietors outside of the scope of these laws, this is the result of the manner in which the Parliament has based and stated those laws.
4. Is the relevant workplace conducted by a constitutional corporation?
[19] It is agreed, or at least not disputed, that:
• Mr Mobbs is engaged by Ms Wenban to undertake work in the business which trades as DIY RV Solutions and the alleged unreasonable conduct took place whilst Mr Mobbs was at work in that capacity;
• Mr Wenban is a sole proprietor of the business and is registered in that capacity as the holder of a relevant Australian Business Number;
• All employee and Pay As You Go taxation records known to Mr Mobbs record Mr Wenban as the sole proprietor;
• The workplace is conducted by Mr Wenban as the sole proprietor; and
• There is no indication of any relevant corporate entity associated with the conduct of the workplace.
[20] As a result, I am satisfied that the relevant workplace is not conducted by a constitutional corporation, or any other form of constitutionally-covered business.
5. Conclusions
[21] Given the coverage of the anti-bullying provisions of the FW Act and the nature of the workplace evident here, any alleged conduct and this application fall outside of that jurisdiction. As a result, this application must be dismissed and I so order.
[22] I would confirm that this decision does not deal with the substantive merit or otherwise of the application or the response provided. Further, the initiatives discussed during the preliminary conference in this matter should not be lost and I would recommend that the parties seek to advance them in their collective best interests despite the differing views about how they have reached this point. Finally, as foreshadowed in the conference, the finding in this matter does not necessarily mean that there are no other avenues 7 for any unresolved matters to be considered.
COMMISSIONER
Appearances:
Mr D Mobbs, the Applicant on his own behalf.
Mr M Wenban, the Respondent on his own behalf.
Conference details:
2019
By Telephone
February 27.
Printed by authority of the Commonwealth Government Printer
<PR705361>
1 [2014] FWC 3288.
2 [2014] FWC 6723.
3 [2016] FWC 6590.
4 See the Fair Work (State Referral and Consequential and Other Amendments) Act 2009.
5 Queensland is not a Territory as defined in s.2B of the Acts Interpretation Act 1901, which refers to s.122 of the Australian Constitution.
6 Section 52(xx) of the Australian Constitution.
7 This includes that Work Health and Safety issues may fall under the coverage of the Work Health and Safety Act 2011 (Qld) and disputes about the application of a modern award may be dealt with under the FW Act on the basis that the relevant provisions apply to national system parties.
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