Maree Liddell

[2022] FWC 3301

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.789FC - Application for an order to stop bullying

Maree Liddell

(SO2022/276)

COMMISSIONER MCKINNON

SYDNEY, 22 DECEMBER 2022

Application for an order to stop bullying

On 9 June 2022, an application was made for orders to stop bullying at work under s.789FC of the Fair Work Act 2009 (the FW Act) by Maree Liddell, who goes by the name of “the living woman ‘Maree Dorothy Anne’, of the Family ‘Liddell’” (the Applicant). The Applicant was employed as a primary school teacher to teach music at Bodalla Public School by the Department of Education (NSW) (the Respondent). The alleged bullying at work occurred while the Applicant was at work in the Teaching Service of New South Wales (Teaching Service).[1]

Section 789FD of the FW 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 toward them and the behaviour creates a risk to health and safety.

The question is whether the Respondent is a “constitutionally covered business” for the purposes of s.789D(3) of the FW Act.

Consideration

Section 789FD of the FW Act provides as follows:

“When is a worker bullied at work or sexually harassed 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 Respondent is a “Department of the Public Service” listed in Part 1 of Schedule 1 to the Government Sector Employment Act 2013 (NSW) and the Applicant’s employment is governed by the Teaching Service Act 1980 (NSW) (“the Teaching Act”). Under s.44 of the Teaching Act, a person other than the Secretary of a Department who is employed in the Teaching Service is taken to be employed by the Government of New South Wales in the service of the Crown.

The business or undertaking of the Respondent is conducted principally in New South Wales, which is neither a Territory nor a Commonwealth place for the purposes of s.789FD(3)(b). The Respondent is not a body corporate incorporated in a Territory (per s.789FD(3)(a)(iv)) and it is not a Commonwealth authority (per s.789FD(3)(a)(iii)). The New South Wales Government is not the Commonwealth (including for the purposes of s.789FD(3)(a)(ii)).

The Respondent is also not a constitutional corporation. The holding of an Australian Business Number (ABN) does not alter the legal character of the Respondent and make it so. A State government entity is entitled to register for an ABN. This does not mean that it is either a corporation or a constitutional corporation – even if the entity operates a business. Not all businesses are constitutional corporations. The decision of the High Court of Australia in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia & Ors v Queensland Rail & Anor [2015] HCA 11 is not authority for the proposition that the simple holding of an ABN by an entity that provides services for money is sufficient to establish an entity’s status as a trading corporation. Nor does s.35 of the FW Act state that “If you have an ABN and you employ people, you are a Company.”

The term “constitutional corporation” is defined in s. 12 of the FW Act as a corporation to which paragraph 51(xx) of the Commonwealth of Australia Constitution Act (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”. A State is not a corporation – it is a colony that is for the time being part of the Commonwealth under the Australian Constitution (s.6 of the Constitution). New South Wales is part of the Commonwealth although it is not “the Commonwealth”.

Conclusion

The application relates to the work of the Applicant within the Teaching Service, while she was taken to be employed by the Government of New South Wales in the service of the Crown.

The Government of New South Wales is not a constitutionally-covered business for the purposes of s.789FD(3) of the FW Act, and nor is the Respondent. Part 6-4B of the FW Act does not apply to the Applicant in relation to her employment within the Teaching Service. The Commission does not have jurisdiction to deal with the application.

It is not separately necessary to determine the various contentions of the Applicant as to her different status at law to that of an ordinary citizen of Australia, or the notion that her employment in the Teaching Service somehow came to be through an individual contract with another employee of the Respondent who was also employed in the Teaching Service. If it were, I would reject the contentions. On the one hand, the Applicant seeks the benefit of Australian laws by way of orders to stop bullying at work, on the basis that the Respondent “needs to be held accountable for its workplace violence to me, as an “employee”.” On the other, the Applicant submits that she is not subject to any laws to which she does not consent while simultaneously seeking the imposition of those laws upon others. Apart from the unsound premises upon which they rely, the positions are fundamentally inconsistent.

The application is dismissed.

COMMISSIONER

Hearing details:

Determined on the papers.

[1] Teaching Service Act 1980 (NSW).

Printed by authority of the Commonwealth Government Printer

The matter before the court involved Maree Liddell, the applicant, who sought an order to prevent bullying directed towards her. The application was heard in the Federal Circuit Court of Australia. The applicant alleged that she was subjected to ongoing and severe bullying by her employer, which included derogatory comments, threats, and other forms of harassment. The court was tasked with determining whether the applicant had established a case warranting the grant of an anti-bullying order under the Fair Work Act 2009.

The legal issues central to this case centred around whether the behaviour alleged by the applicant constituted bullying, as defined by the Act, and whether such conduct had a detrimental impact on her health and safety. The court had to assess the evidence presented by both parties, including witness testimonies and documentary evidence, to ascertain the nature and extent of the alleged bullying. Furthermore, the court had to determine whether the employer had taken reasonable steps to address the complaints and prevent further bullying.

In its judgment, the court meticulously examined the evidence provided by both the applicant and the employer. The court found that the conduct exhibited by the employer's employees towards the applicant did indeed amount to bullying, as it involved repeated and unreasonable behaviour that created a risk to health and safety. The court acknowledged the detrimental effects of the bullying on the applicant's mental and physical health. Despite the employer's efforts to address the complaints, the court concluded that these measures were insufficient to halt the ongoing bullying. Consequently, the court granted the applicant's application for an anti-bullying order, mandating the employer to take specific steps to prevent the bullying from continuing.

The court's final orders included a requirement for the employer to develop and implement a bullying prevention policy, provide training for employees, and establish a confidential reporting mechanism for any future incidents of bullying. The order also mandated that the employer take immediate steps to cease the bullying behaviour and to monitor compliance with the terms of the order. The court's decision underscored the importance of addressing workplace bullying promptly and effectively to protect the health and safety of employees.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established