Matthew Robinson

[2021] FWC 755

[2021] FWC 755

FAIR WORK COMMISSION

DECISION

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

Matthew Robinson
(AB2020/854)

DEPUTY PRESIDENT CLANCY MELBOURNE, 12 FEBRUARY 2021

Application for an FWC order to stop bullying – whether application within the scope of the anti-bullying jurisdiction – whether workplace is constitutionally covered – not conducted by the Commonwealth or in a Territory – not a corporation – no jurisdiction – application dismissed Application for an FWC order to stop bullying.

[1] Mr Matthew Robinson has made an application under s.789FC of the Fair Work Act 2009 (the Act) for an order to stop bullying conduct he alleges has taken place, and may in the future take place, within his workplace.

[2] Mr Robinson lodged the Form F72 – Application for an order to stop bullying (Form F72) with the Commission to commence this Application on 29 December 2020 (the Application). Mr Robinson is employed as a Correctional Officer at the Tasmanian Prison Service, Department of Justice in the State of Tasmania.

[3] A Form F73 – Response from an employer/principal to an application for an order to stop bullying (Form F73) was filed on behalf of the Tasmanian Prison Service by the Department of Justice (the Department) on 11 January 2021. The Department objected to Mr Robinson’s application on the basis that Mr Robinson is not working in a “constitutionally-covered business”.

[4] On 14 January 2021, the matter was allocated to my Chambers and I issued Directions for the filing of submissions on the jurisdictional objection. The Department filed their submissions on 27 January 2021 however Mr Robinson failed to file any submissions and did not respond to an email from my Chambers seeking information as to when I could expect to receive his material. The email noted that if the Directions were not complied with, I would proceed to decide the matter with regard to the material that had been filed with the Commission by the Department. Mr Robinson has not responded in any way.

Legislative Framework

[5] Section 789FC of the Fair Work Act 2009 (the Act) sets out when a person can make an application to the Commission for an order to stop bullying:

“Application for an FWC order to stop bullying

(1) A worker who reasonably believes that he or she has been bullied at work may apply to the FWC for an order under section 789FF.

(2) For the purposes of this Part, worker has the same meaning as in the Work Health and Safety Act 2011, but does not include a member of the Defence Force.

Note: Broadly, for the purposes of the Work Health and Safety Act 2011, a worker is an individual who performs work in any capacity, including as an employee, a contractor, a subcontractor, an outworker, an apprentice, a trainee, a student gaining work experience or a volunteer.

(3) The application must be accompanied by any fee prescribed by the regulations.

(4) The regulations may prescribe:

(a) a fee for making an application to the FWC under this section; and

(b) a method for indexing the fee; and

(c) the circumstances in which all or part of the fee may be waived or refunded.”

[6] Section 789FD of the Act sets out the requirements for a person to have been bullied at work:

“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.

[7] Section 789FF of the Act sets out when the Commission may make an order to stop bullying:

“FWC may make orders to stop bullying

(1) If:

(a) a worker has made an application under section 789FC; and

(b) the FWC is satisfied that:

(i) the worker has been bullied at work by an individual or a group of individuals; and

(ii) there is a risk that the worker will continue to be bullied at work by the individual or group;

then the FWC may make any order it considers appropriate (other than an order requiring payment of a pecuniary amount) to prevent the worker from being bullied at work by the individual or group.

(2) In considering the terms of an order, the FWC must take into account:

(a) if the FWC is aware of any final or interim outcomes arising out of an investigation into the matter that is being, or has been, undertaken by another person or body--those outcomes; and

(b) if the FWC is aware of any procedure available to the worker to resolve grievances or disputes--that procedure; and

(c) if the FWC is aware of any final or interim outcomes arising out of any procedure available to the worker to resolve grievances or disputes--those outcomes; and

(d) any matters that the FWC considers relevant.”

Submissions

[8] The Department submits that, in order for the Commission to deal with conduct covered by the anti-bullying provisions, the conduct must take place while the worker is at work in a constitutionally-covered business. The Department asserts that Mr Robinson is not, and was not at the time the alleged bullying took place, at work in a constitutionally-covered business and therefore the Commission has no jurisdiction to deal with this Application.

[9] The Department refers to s. 789FD of the Act set out at paragraph [6] above. The Department next refers to s.12 of the Act with the following definitions:

“constitutional corporation means a corporation to which paragraph 51(xx) of the Constitution applies.

Constitutionally-covered business: see subsection 789FD(3).”

[10] The Department further refers to Section 51(xx) of the Constitution which provides:

“The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:

(xx) foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth;…”.

[11] The Department submits that the employer of Mr Robinson is and was the Crown in the right of the State of Tasmania, with the Department of Justice being an agency under the provisions of the Tasmanian State Service Act 2000.

[12] The Department asserts that the State of Tasmania is not a corporation, and therefore not a constitutional corporation. The Department asserts that Section 51(xx) of the Constitution does not apply to the Crown in the right of the State of Tasmania. Therefore, the Department submits that Mr Robinson is not at work in a constitutionally-covered business nor was he at the time the alleged bullying took place.

[13] The Department submits that in the absence of a referral of powers to the Commonwealth under the Industrial Relations (Commonwealth Powers) Act 2009, the Commission has no jurisdiction to deal with this application and the Application should be dismissed.

Consideration

[14] Section 789FD of the Act focuses on the workplace where the applicant is at work when the alleged bullying conduct took place. The section requires that the conduct must take place while the worker is at work in a constitutionally-covered business. Section 789FD(3) then requires the Commission to consider the nature and location of the legal person conducting the business or undertaking.

[15] Mr Robinson is employed at the Tasmanian Prison Service, Department of Justice. The State of Tasmania is not a corporation within the meaning of Section 51(xx) of the Constitution. The workplace in this matter is not located in a Territory and the undertaking is not conducted by the Commonwealth or a Commonwealth authority.

[16] The Commission is a statutory tribunal and has no inherent jurisdiction. It is empowered to deal with matters, and limited in what it can determine, by the terms of the Act.

Conclusion

[17] This decision does not deal with the substantive merit or otherwise of Mr Robinson’s application but goes to whether or not he is eligible to make it. I am satisfied that Mr Robinson’s workplace is not conducted by a constitutional corporation, or any other form of constitutionally-covered business and that this application falls outside of the jurisdiction of the Commission. In these circumstances, I am persuaded that I should exercise my discretion pursuant to s.587(1)(c) of the Act to dismiss the anti-bullying application of Mr Robinson, on the basis that it has no reasonable prospects of success. An order dismissing the anti-bullying application of Mr Robinson will be issued along with this decision.

DEPUTY PRESIDENT

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