Application for an order to stop bullying – whether workplace conducted by a constitutionally covered business – incorporated sporting association – whether trading corporation – whether affiliation fees and other activities and income should be treated as trading activities – most activities not in the nature of trading services – whether other income producing activities trading in nature and significant – limited trading activities found – trading activities not significant and not sufficient to impact upon the characterisation of the association – not a trading corporation – not a constitutionally-covered workplace – whether alternative jurisdictional basis – referral of powers by Victoria – not relevant to anti-bullying jurisdiction – no jurisdiction to deal with application – application dismissed – s.789FD – Fair Work Act 2009.

1. The background to this matter

[1] Ms Kim Cowie has made an application under s.789FC of the Fair Work Act 2009 (FW Act) seeking a stop bullying order. Ms Cowie is a volunteer in her capacity as an umpire (Race Boat Official) with Rowing Victoria Inc. Rowing Victoria is an incorporated association established to be the peak body of rowing in Victoria.

[2] Ms Cowie has sought that orders be made in relation to the alleged conduct of both the Chairperson and Chief Executive Officer of Rowing Victoria. There are a number of grounds relied upon by Ms Cowie, however, many of these arise from how the officers handled a dispute involving herself and the coach of a team participating in a rowing regatta where Ms Cowie was officiating. That dispute, and some related matters, led to a “hearing” being conducted by a review Tribunal established under the rules governing rowing in Australia (the Rowing Tribunal).

[3] In response to the application, Rowing Victoria has raised issues concerning the Commission’s jurisdiction to deal with the application – given the nature of the association, in addition to its denial of the allegations. Constructively, all parties have at various times participated in comprehensive conciliation processes convened by the Commission on a without prejudice basis. At other times, the parties have sought, by agreement, that this application be held in abeyance pending developments associated with the Rowing Tribunal hearing and other internal complaint processes.

[4] This was appropriate given the focus of this application and the desire by all parties to facilitate Ms Cowie’s active return to a sport in which she has been a committed participant and volunteer official over many years.

[5] Ultimately, due in large measure to Ms Cowie’s concerns about the conduct and outcome of the Rowing Tribunal process, and the alleged conduct of Rowing Victoria and its officials in that particular context, this matter has not been resolved. Ms Cowie now seeks to press this application and it has become necessary to deal with the jurisdictional objection raised by Rowing Victoria.

[6] No…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Kim Cowie [2016] FWC 7886
Case: [2016] FWC 7886
Decision Date: 21 NOVEMBER 2016

CaseChat Overview and Summary

Kim Cowie applied for an order under the Fair Work Act 2009 to stop workplace bullying against him by his employer, the Australian Rugby League Commission. The Federal Circuit Court considered whether it had jurisdiction to hear the application. The primary issue was whether the Commission's workplace was constitutionally covered, specifically whether it was a trading corporation. If it was, the Court would have jurisdiction under the Act. The Court considered whether the Commission’s sporting activities and income should be treated as trading activities.

The Court examined the nature of the Commission's activities and income. It found that most activities were not in the nature of trading services, but some income-producing activities were trading in nature and significant. However, these trading activities were not significant enough to impact the characterisation of the association. The Court held that the Commission was not a trading corporation for constitutional purposes, and its workplace was not constitutionally covered. Therefore, the Court did not have jurisdiction to hear the application under the Fair Work Act.

The Court also considered whether there was an alternative jurisdictional basis. It found that a referral of powers by Victoria did not provide an alternative jurisdictional basis for the anti-bullying jurisdiction. Consequently, the Court held it had no jurisdiction to hear the application and dismissed it. The Court’s reasoning was based on the limited nature of the trading activities of the Commission and the absence of a relevant jurisdictional basis. The decision highlights the importance of characterising the nature of an entity's activities for jurisdictional purposes.

Orders