Het
[2024] FWC 2426
•6 SEPTEMBER 2024
| [2024] FWC 2426 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
Het
(AB2024/327)
| COMMISSIONER MCKINNON | SYDNEY, 6 SEPTEMBER 2024 |
Application for an order to stop bullying at work – whether bullying occurred while at work in a constitutionally-covered business
On 7 May 2024, Ms Nyi Mar (Grace) Het applied for orders to stop bullying at work under s.789FC of the Fair Work Act 2009 (the Act). The Applicant is employed to work as a Hospital Assistant at Ryde Hospital, which is managed by Northern Sydney Local Health District (NSLHD). The application alleges bullying at work while Ms Het was at work.
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 NSLHD is a “constitutionally‑covered business” for the purposes of s.789FD(3) of the Fair Work Act. For the reasons that follow, I am unable to conclude that NSLHD is a constitutionally-covered business. It follows that I cannot be satisfied that Ms Het has been bullied at work as that term is defined in s.789FD. The application will be dismissed.
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.”
NSLHD forms part of the NSW Health Service under the Health Services Act 1997 (the Health Services Act). Staff in the NSW Health Service are employed by the Health Secretary under s.116 of the Health Services Act on behalf of the Government of NSW in the service of the Crown.
Ms Het is employed as a Hospital Assistant (Cleaner) under the Health Employees (State) Award. She is employed in the NSW Health Service by the Health Secretary in the capacity described above.
The Health Secretary is a person who conducts a business or undertaking for the purposes of the Work Health and Safety Act 2011 (WHS Act), and Ms Het, in her capacity as an employee, is a worker within the meaning of the WHS Act. To bring her application within scope of the Commission’s power to stop bullying at work under s.789FC of the Fair Work Act, the alleged bullying must also have occurred while Ms Het was “at work in a constitutionally-covered business” (s.789FD(1)(a)).
The meaning of “constitutionally-covered business” is set out in s.789FD(3) of the Fair Work Act. 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) (set out above) applies to the person. In this case, the relevant business is the NSLHD.
The Commonwealth? The NSLHD is an emanation of the Government of NSW in service of the Crown. It is not the Commonwealth.
A Commonwealth authority? The NSLHD is not a Commonwealth authority (per s.789FD(3)(a)(iii)). “Commonwealth authority” is defined in s.12 of the Fair Work Act as a body corporate established for a public purpose by or under a law of the Commonwealth or a body corporate incorporated under a law of the Commonwealth or a State or a Territory and in which the Commonwealth has a controlling interest. The NSLHD is not a body corporate and accordingly cannot be a Commonwealth authority.
A body corporate incorporated in a Territory? As noted above, the NSLHD is not a body corporate. It follows that it cannot be incorporated in a Territory (per s.789FD(3)(a)(iv)), and even if it could, “Territory” refers to the Territories of Australia, most notably the Australian Capital Territory and the Northern Territory. NSW is a State, rather than a Territory, of Australia.
A business or undertaking conducted principally in a Territory or Commonwealth place? The business of the NSLHD is conducted principally in NSW. As noted above, NSW is not a Territory. “Commonwealth place” is defined in s.12 of the Fair Work Act as a place referred to in s.52(i) of the Constitution other than the seat of government of the Commonwealth. Relevantly, that means any place “acquired by the Commonwealth for public purposes”. NSW does not meet this description and there is no evidence that any narrower description of any “place” in which the NSLHD principally conducts its business would be a place that has been acquired by the Commonwealth for public purposes.
A constitutional corporation? That leaves the question of whether the NSLHD 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 noted above, the NSLHD is not a body corporate. It is an emanation of the Government of NSW in service of the Crown. It is not a constitutional corporation.
Conclusion
The application by Ms Het seeks orders to stop bullying at work in relation to her manager and other team members at NSLHD. The alleged bullying at work occurred while Ms Het was at work in the NSLHD, in her capacity as an employee of the NSW Health Service.
For the reasons above, I am unable to conclude that the alleged bullying occurred while Ms Het was at work in a constitutionally-covered business as defined in s.789FD(3) of the Fair Work Act. Accordingly, I could not be satisfied that Ms Het has been bullied at work for the purposes of s.789FD(1).
The application is dismissed.
COMMISSIONER
Hearing details:
Determined on the papers.
Printed by authority of the Commonwealth Government Printer
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