Applications for an FWC order to stop bullying – matters heard concurrently – local government employer in South Australia – objection to Commission’s jurisdiction – non-standard hearing due to intervention orders - meaning of “constitutionally-covered business”- Australian Constitution section 51(xx) - trading or financial corporation formed within the limits of the Commonwealth – activities test – trading activities peripheral not substantial – applications dismissed

[1] This decision only concerns jurisdictional (legal) issues arising from applications before the Fair Work Commission (the Commission). It makes no findings concerning the merit or otherwise of conduct that is alleged to have been bullying conduct or on the responses of the parties thereto.

[2] On 17 August 2017 an application for an order to stop bullying was made to the Commission under section 789FC of the Fair Work Act 2009 (FW Act) by Martin Cooper. He alleges bullying conduct by Lancelot Bagster. His application states that he is employed or engaged by the City of Burnside (the employer).

[3] On 23 August 2017 an application for an order to stop bullying was made to the Commission under section 789FC of the FW Act by Lancelot Bagster. He alleges bullying conduct by Paul Deb, Martin Cooper and David Parkin. His application states that he is employed or engaged by the City of Burnside.

[4] The respondents to each application raise the following jurisdictional issues:

1. Whether in both matters the applicants are working in a “constitutionally covered business” for the purposes of section 789FD(1) of the FW Act, and in particular whether the business or undertaking of the City of Burnside is a “constitutional corporation” for the purposes of section 789FD(3) of the FW Act;

2. Whether in both matters the applicants are “workers” within the meaning of the Work Health and Safety Act 2011 (Clth) and for the purposes of section 789FC(2) of the FW Act;

3. Whether in matter AB2017/463 (Bagster) the applicant is a “worker” for the purposes of section 789FC(2) of the FW Act and in particular whether he is a “member of the Defence Force”.

[5] I conducted a directions hearing of Mr Cooper’s application by telephone on 5 September and issued directions on that day. 1

[6] I conducted an in-person conference of the parties to both Mr Cooper’s application and Mr Bagster’s application on 11 September. The conference was adjourned to a further in-person conference of the parties on 19 September.

[7] On 12 September the employer made, inter alia, two requests: firstly, that I make interim orders against Mr Bagster; and secondly, that the jurisdictional issues be resolved prior to further hearings.

[8] On 17 September a support person for Mr Bagster (Mr Jacobsen) made, inter alia, two requests: firstly, that I determine the jurisdictional issues before any further discussion or…

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 Mr Martin Cooper

Details

AGLC: Mr Martin Cooper [2017] FWC 5974
Case: [2017] FWC 5974
Decision Date: 15 NOVEMBER 2017

CaseChat Overview and Summary

Mr Martin Cooper applied for orders to stop workplace bullying against him by his employer, the City of Playford, a local government authority in South Australia. The matter was heard concurrently with the employer's objection to the Fair Work Commission's jurisdiction over the dispute. Due to intervention orders, the hearing was non-standard. The central legal issue was whether the employer's activities qualified as "constitutionally-covered business" under the Australian Constitution section 51(xx). This section pertains to trading or financial corporations formed within the limits of the Commonwealth.

The court examined whether the City of Playford's activities were predominantly trading or financial, or if they were peripheral to its primary role as a local government authority. The court determined that the City's trading activities were not substantial or central to its operations. Consequently, the employer did not meet the criteria to be considered a trading or financial corporation under section 51(xx). As a result, the Commission's jurisdiction was not constitutionally covered, and the applications for orders to stop the alleged bullying were dismissed.

Orders