DECISION

Fair Work Act 2009
s.789FC - Application for an order to stop bullying

Matina Bastakos
(AB2018/336)

COMMISSIONER MCKINNON

MELBOURNE, 18 DECEMBER 2018

Application for an order to stop bullying in relation to local government work – jurisdictional objection – whether the City of Port Phillip is a constitutionally-covered business – whether City of Port Phillip is a trading corporation – whether the City of Port Phillip engages in substantial trading activities – jurisdictional objection dismissed.

Introduction

[1] Marina Bastakos has applied under section 789FC of the Fair Work Act 2009 (Cth) (the Act) for an order to stop bullying in relation to her work for the City of Port Phillip (the City).

[2] The City denies that any bullying behaviour has occurred. It objects to the application on jurisdictional grounds because it says it is not a trading corporation and thus not a “constitutionally-covered business” for the purposes of section 789FD of the Act.

[3] For the reasons that follow, I find that the City is a trading corporation and a constitutionally-covered business for the purposes of the Act.

The legislation

[4] Section 789FD of the Act provides as follows:

“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.”

Consideration

[5] The City is a Victorian local government entity and a body corporate established by an Order of the Governor in Council on 22 June 1994. 1 Its business or undertaking is conducted principally (if not wholly) within Victoria. Having regard to the terms of section 789FD(3) of the Act, the City will only be a constitutionally-covered business if it is constitutional corporation.

[6] A constitutional corporation is one that falls within the ambit of section 51(xx) of the Commonwealth of Australia Constitution Act (the Constitution), which 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”.

Is the City a corporation?

[7] The City is constituted and organised according to the laws of Victoria, and specifically, the Local Government Act 1989 (Vic) (the LG Act).…

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.

Continue reading Matina Bastakos

Details

AGLC: Matina Bastakos [2018] FWC 7650
Case: [2018] FWC 7650
Decision Date: 18 DECEMBER 2018

CaseChat Overview and Summary

The applicant, Matina Bastakos, sought an order under the Fair Work Act 2009 (Cth) to stop bullying in relation to work with the respondent, the City of Port Phillip. The application was filed in the Fair Work Commission, which is a tribunal with federal jurisdiction created by statute. The City of Port Phillip raised a jurisdictional objection, arguing that it was not a business within the meaning of the Fair Work Act and therefore the Commission lacked jurisdiction to hear the application. The central legal issue before the court was whether the City of Port Phillip was a business covered by the Fair Work Act, and thus whether the Commission had jurisdiction over the application.

The court found that the City of Port Phillip was a business within the meaning of the Fair Work Act. The court reasoned that the City of Port Phillip was a trading corporation, as it performed trading and financial activities for profit. The court also found that the City of Port Phillip engaged in substantial trading activities, as it generated a significant portion of its revenue from trading activities, including the provision of services such as waste management, parks and recreation, and community services. The court rejected the City of Port Phillip’s argument that it was not a business because it was a local government entity. The court held that the fact that the City of Port Phillip was a local government entity did not preclude it from being a business within the meaning of the Fair Work Act.

As a result, the City of Port Phillip’s jurisdictional objection was dismissed. The court found that it had jurisdiction to hear the application and make an order under the Fair Work Act to stop the bullying in relation to work with the City of Port Phillip. The final orders of the court were that the jurisdictional objection of the City of Port Phillip was dismissed and the application was to proceed before the Commission.

Orders