DECISION

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

Mr Murray George
(AB2017/317)

Mr Frank Young
(AB2017/398)

COMMISSIONER HAMPTON

ADELAIDE, 24 AUGUST 2017

Applications for an FWC order to stop bullying – preliminary issues – applicants seeking declarations about the legal validity of meetings and decisions – alleged matters of maladministration, unauthorised actions and breaches of legislation – whether proper for Commission to deal with – nature of the Commission’s jurisdiction and powers considered – nature and impact of the issues upon the parties and these proceedings considered – Commission able to consider the alleged conduct but not to declare the legal validity of the meetings and decisions more generally – considerable legal uncertainty without such a determination for the parties and for these applications – discretion to be exercised – applications to be held in abeyance pending judicial review or other action – liberty to apply granted.

1. Background and the issues to be determined

[1] This decision deals with some preliminary issues that have arisen in the context of two related applications made under s.789FC of the Fair Work Act 2009 (the FW Act) for orders to stop workplace bullying. The two applications have been made by Mr Murray George and Mr Frank Young respectively, and both hold elected positions on the Executive Board of the Anangu Pitjantjatjara Yankunytjatjara Inc (APY Inc). Mr Young is the Chairperson of that Board. Both applications name Mr Richard King, the General Manager of the APY Inc as the individual whose conduct is alleged to have led to bullying at a workplace. APY Inc is also named in the application and together with Mr King form the respondent parties.

[2] The Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA) (APY Act) provides for the vesting of title to approximately 100,000 square kilometres of lands in northern South Australia to the people known as Anangu Pitjantjatjara Yankunytjatjara. The APY Act establishes the Executive Board which consists of elected or appointed members, including a Chairperson and Deputy Chairperson. It also provides for the appointment, by the Executive Board, of a Director of Administration and General Manager. The APY Act also establishes APY Inc as a corporate entity with status, powers and functions including the capacity to sue and be sued. I have referred to the corporate entity as APY Inc to differentiate between that entity and the APY community.

[3] Some of the context for these applications is set by an earlier s.789FC application by a former Chairperson, Mr Trevor Adamson. In a decision 1 dealing with various preliminary jurisdictional issues, the Commission discussed the broad operation of the APY Act and some of the circumstances facing the Executive Board in recent years. This included some preliminary findings about whether Mr Adamson was a “worker” within the meaning of the FW Act and consideration as to whether that application was an abuse of process. In April 2017,…

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 Murray George

Details

AGLC: Mr Murray George [2017] FWC 4349
Case: [2017] FWC 4349
Decision Date: 24 AUGUST 2017

CaseChat Overview and Summary

The applicants in the matter of Mr Murray George sought an order from the Fair Work Commission to address alleged bullying and other issues arising from their employment. The court was required to determine whether the Commission had the appropriate jurisdiction and powers to deal with the applicants’ claims, including seeking declarations on the legal validity of meetings and decisions, and allegations of maladministration, unauthorised actions, and breaches of legislation. The applicants argued that these issues were within the Commission’s remit, while the respondents contended that the Commission lacked the necessary jurisdiction to address these matters.

The court examined the nature and scope of the Commission’s jurisdiction and powers, taking into account the legal uncertainty that would arise for the parties and these proceedings without a determination on the validity of the meetings and decisions. The court held that while the Commission could consider the alleged conduct, it could not declare the legal validity of the meetings and decisions more broadly. This decision was made to avoid creating considerable legal uncertainty for the applicants and for the applications themselves. The court exercised its discretion to hold the applications in abeyance pending any judicial review or other appropriate action, granting the applicants liberty to apply for such relief.

This decision highlights the importance of clearly defining the scope of the Commission’s jurisdiction and powers, particularly in cases involving complex and contentious employment matters. The court’s ruling ensures that the applicants have the opportunity to seek appropriate legal remedies, while also maintaining the integrity and authority of the Commission’s role in addressing workplace disputes.

Orders