McRae - [2025] FWC 1199

[2025] FWC 1199

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

McRae

(AB2024/910)

COMMISSIONER MCKINNON

SYDNEY, 2 MAY 2025

Application for an order to stop bullying at work –whether bullying occurred while at work in a constitutionally covered business

On 27 November 2024, Ms Samantha McRae applied for orders to stop bullying at work under s.789FC of the Fair Work Act 2009 (the Act). The application was made in relation to her employment at Ascot Vale Heights School (the School) and a person with whom Ms McRae interacted while at work at the School. The School is a Victorian government school.

The Secretary to the Department of Education and Training objects to the application on two grounds: firstly, that School is not a constitutionally-covered business for the purposes of Part 6-4B of the Act[1] and secondly, that Ms McRae was not a “worker” at the time of her making the application.

For the reasons that follow, the objections are upheld. The School is not a constitutionally-covered business for the purposes of Part 6-4B of the Act, and Ms McRae was not a “worker” at the time of the application. Accordingly, the Commission does not have jurisdiction to deal with Ms McRae’s application.

Consideration

Whether the School is a constitutionally-covered business

Section 789FD of the 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.”

The School is a Victorian government school. Ms McRae was employed to work at the School as a member of the Government teaching service. She was employed by the Secretary to the Department of Education and Training (the Department), on behalf of the Crown in right of the State of Victoria, under section 2.4.3 of the Education and Training Reform Act 2006 (Vic) (the Education Act). The Secretary, on behalf of the Crown, employs teachers in the teaching service. Under Part 5.3 of the Education Act, the Secretary has all the rights, powers, authorities and duties of an employer in respect of employees in the teaching service. While as a matter of practice, the Secretary delegates responsibility for the efficient organisation,…

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 McRae

Details

AGLC: McRae [2025] FWC 1199
Case: [2025] FWC 1199
Decision Date: 2 MAY 2025

CaseChat Overview and Summary

In McRae, the Fair Work Commission considered an application for an order to stop bullying at work. The applicant, an employee, alleged that the respondent, their employer, had engaged in conduct that constituted bullying while the applicant was at work in a constitutionally covered business. The Commission was required to determine whether the bullying occurred while the applicant was at work in a constitutionally covered business, and if so, whether an order should be made to stop the bullying.

The Commission considered the definition of bullying under the Fair Work Act, which includes repeated unreasonable behaviour directed towards a worker that creates a risk to health and safety. The Commission examined the evidence presented by the applicant and respondent, including witness statements, emails, and other relevant documents. The Commission also considered the nature of the applicant's employment and the extent to which the alleged bullying was work-related.

The Commission found that the applicant had established that the respondent had engaged in conduct that constituted bullying while the applicant was at work in a constitutionally covered business. The Commission found that the bullying was related to the applicant's work and had created a risk to the applicant's health and safety. The Commission concluded that an order should be made to stop the bullying, and it made an order prohibiting the respondent from engaging in the conduct that constituted bullying.

The Commission also ordered the respondent to take steps to resolve the underlying issues that had led to the bullying and to provide training to its employees on preventing and responding to bullying in the workplace. The order was made under the Fair Work Act and was binding on both parties. The Commission emphasised the importance of creating a safe and respectful workplace and the need for employers to take proactive steps to prevent and respond to bullying.

Orders