Kour
[2024] FWC 2342
•3 SEPTEMBER 2024
| [2024] FWC 2342 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
Kour
(AB2024/403)
| COMMISSIONER MCKINNON | SYDNEY, 3 SEPTEMBER 2024 |
Application for an order to stop bullying at work – whether bullying occurred while at work in a constitutionally covered business
On 3 June 2024, Mrs Nardeep Kour 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 by the NSW Health Service to work in HealthShare NSW (HealthShare). The alleged bullying at work occurred while Mrs Kour was at work in HealthShare.
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 HealthShare 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 HealthShare is a constitutionally-covered business. It follows that I cannot be satisfied that Mrs Kour 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.”
HealthShare is a business unit within the Health Administration Corporation, which is constituted under the Health Administration Act 1982 (NSW) (the Health Administration Act) by the incorporation of the Health Secretary as a corporate sole known as the Health Administration Corporation. In this capacity, the Health Secretary exercises statutory functions in connection with the provision of ambulance and support services to the New South Wales (NSW) health system. The Health Administration Corporation cannot employ staff. Employees working for the Health Administration Corporation are instead employed as staff in the NSW Health Service under the Health Services Act 1997 (the Health Services Act) by the Government of NSW in the service of the Crown.
Mrs Kour is employed as a Food Services Hospital Assistant under the Health Employees (State) Award. She is employed in the NSW Health Service under s.116 of the Health Services Act. Under s.116, the Health Secretary may exercise the employer functions of the Government on behalf of the Government of NSW in relation to staff employed in the NSW Health Service and it is in this capacity, rather than in the capacity of the Health Administration Corporation, that the Health Secretary employs Mrs Kour.
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 Mrs Kour, 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 Mrs Kour 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 Health Administration Corporation. Although Mrs Kour is employed by the Government of NSW, she works in HealthShare, which is a business unit of the Health Administration Corporation.
The Commonwealth? The Health Administration Corporation is a statutory body representing the Government of NSW in service of the Crown. It is not the Commonwealth.
A Commonwealth authority? The Health Administration Corporation 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 Health Administration Corporation is incorporated under a law of NSW, rather than a law of the Commonwealth. There is no evidence that the Commonwealth has a controlling interest in the Health Administration Corporation.
A body corporate incorporated in a Territory? The Health Administration Corporation is not a body corporate incorporated in a Territory (per s.789FD(3)(a)(iv)). “Territory” is a reference 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 Health Administration Corporation 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 the “place” in which the Health Administration Corporation 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 Health Administration Corporation 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 Health Administration Corporation is constituted by incorporation of the Health Secretary as a corporate sole under the Health Administration Act. It is a corporation. It is constituted in NSW and is accordingly not a foreign corporation. There is no evidence that it is a financial corporation and this seems unlikely given its primary function of providing ambulance and support services to the NSW Health Service.
Is it a trading corporation? Does it have the capacity to trade, and does it undertake sufficient trading for that to be considered a substantial, and not merely peripheral activity of the corporation?[1]
Principles relevant to the characterisation of trading corporations were usefully set out in Aboriginal Legal Service of Western Australia (Inc) v Lawrence [No 2][2] and summarised by a Full Bench of this Commission in the context of whether an entity established under statute and for public purposes was a trading corporation.[3] As the Federal Court stated in Bankstown Handicapped Children’s Centre v Hillman[4], there is no ‘bright line’ that establishes the proportion of revenue that must come from a corporation’s trading activities to warrant characterisation as ‘substantial’. It is a matter of fact and degree, requiring an assessment both of the absolute and relative volume of the trading activities of the particular entity.[5]
In this case, the Health Secretary denies that the Health Administration Corporation is a constitutional corporation and submits that it is a not-for-profit entity with “no cash generating units”. The only evidence on the question is a copy of the 2022-23 Annual Report for NSW Health, which describes the Health Administration Corporation as the statutory vehicle to provide ambulance services and support services to the health system. The Annual Report does not divulge any particulars of the financial or trading activities of the Health Administration Corporation, as distinct from the wider NSW Health Service, such as might enable an assessment of any trading activities relative to its activities as a whole.
In the circumstances, I am unable to conclude that the Health Administration Corporation is a trading corporation. It follows that I do not find it to be a constitutional corporation.
Conclusion
The application by Mrs Kour seeks orders to stop bullying at work in relation to her manager and other team members at HealthShare. The alleged bullying at work occurred while Mrs Kour was at work in the Health Administration Corporation, 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 Mrs Kour 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 Mrs Kour has been bullied at work for the purposes of s 789FD(1).
The application is dismissed.
COMMISSIONER
Appearances:
N Kour on her own behalf.
A Britt of Counsel for the respondent
Hearing details:
2024.
Sydney (by video):
August 22.
[1] R v the Judges of the Federal Court of Australia; Ex parte Western Australia National Football League (Inc) [1979] HCA 6; Aboriginal Legal Service of Western Australia (Inc) v Lawrence [No 2] [2008] WASCA 254; United Firefighters’ Union of Australia v Country Fire Authority (2015) 228 FCR 497.
[2] [2008] WASCA 254.
[3] Roads and Maritime Services v Leeman [2018] FWCFB 5772.
[4] Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Queensland Rail & Anor (2010) 182 FCR 483, [52].
[5] Leeman [2018] FWC 3584.
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