Mr Wenhui Wang (Vincent) Wang v Body Corporate for Central Approach CTS 41004, Mr John Meeke, Sonia Leggatt - [2024] FWC 635

[2024] FWC 635

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Mr Wenhui Wang (Vincent) Wang
v

Body Corporate for Central Approach CTS 41004, Mr John Meeke, Sonia Leggatt

(AB2023/276)

DEPUTY PRESIDENT LAKE

BRISBANE, 25 MARCH 2024

Application for an FWC order to stop bullying – jurisdictional objection – not at work at a constitutionally covered business – not eligible to lodge application – reasonable management action considered– bullying not found – application dismissed.

Mr Wenhui Wang (the Applicant) made an application to the Fair Work Commission (the Commission) on 2 July 2023 seeking an Order to Stop Bullying against the Body Corporate for Central Approach CTS 41004 (BC CTS 41004), Mr John Meeke and Ms Sonia Leggatt (the Persons Named) pursuant to s.789FC of the Fair Work Act 2009 (Cth) (the Act).

The key issues in dispute arise from how the Management Agreement has been administered by BC CTS 41004, specifically the maintenance requirements for the property. BC CTS 41004 and the Persons Named raised maintenance issues which they sought to address with the Applicant. The Applicant perceives the actions of the Persons Named to be bullying behaviour.

BC CTS 41004 raised a jurisdictional objection that BC CTS 41004 does not meet the definition of ‘at work at a constitutionally covered business.’ If the objection is not upheld, the Respondent argues that the actions taken by BC CTS 41004 are reasonable management action and not bullying behaviour.

Background and Procedural History

The Applicant and his wife Mrs Ping Jiang entered into a Management Agreement (the Management Agreement) with the Body Corporate for “Central Approach” Community Titles Scheme 41004 on 13 April 2010 for a 10-year period. The Management Agreement was drafted by Phillip Usher Constructions Pty Ltd. The Applicant and Mrs Jiang signed a Deed of Variation where they extended the management rights to 12 April 2035.

The Management Agreement gives the Applicant the right to provide services and make decisions surrounding maintenance and repair of the common property in the interests of the BC CTS 41004. The Management Agreement sets out general and specific duties that the Applicant is to use their best endeavours to see that the common property of BC CTS 41004 is in good order.

On 3 April 2017, the first formal complaint was raised to Mr Wang and Mrs Jiang regarding their failure to carry out their duties in accordance with the Management Agreement.[1]

BCSystems Pty Ltd (BC Systems) were engaged on 21 January 2022 to provide body corporate management services to BC CTS 41004. Ms Sonia Leggatt is employed by BC Systems and performs administration tasks on behalf of a number of Body Corporates including BC CTS 41004.[2]

Ms Leggatt performs administrate functions such as preparing and distributing agenda and meeting minutes, conducting body corporate meetings, providing non-legal advice about strata matters, processing body corporate contribution payments received by the body corporate, liaising with professional consultants, and issuing correspondence on behalf of the committee.[3]

The Body Corporate Committee of BC CTS 41004 (BCC) in late 2022 engaged Management Rights Advice & Service Consultants (MRAS) to review the Management Agreement and review the state of the property Scheme to determine whether Mr Wang and Mrs Jiang were performing their duties as required under the Management Agreement and provide a report.

MRAS undertook an inspection of the premises on 30 November 2022. In their report, there were over 100 issues identified which involved the Applicant and Mrs Jiang failing to perform their Caretaker duties in accordance with the Management Agreement. This will be explored further in the decision. The MRAS report (MRAS Report) was completed on 2 December 2022 and provided to BC CTS 41004. [4]

Mr John Meeke is a retiree who moved to the property managed by BC CTS 41004 in January 2023. On 20 April 2023, the Applicants were informed that Mr John Meeke had been appointed as the BC CTS 41004 Representative. Ms Leggatt stated to the Applicants that Mr Meeke was to be included in all correspondence regarding BC CTS 41004.[5]

The Applicant primarily had issues with Mr Meeke as the BC CTS 41004 Representative. Mr Meeke stated that BC CTS 41004 had substantial concerns about the standard of work being performed by Mr Wang and Mrs Jiang, and the standard of the common area of the Scheme.[6]

On 5 May 2023, Mr Meeke sent an email to the Applicant asking for the status of new equipment purchases and stipulated what BC CTS 41004’s requirements were of the equipment. BC CTS 41004 would reimburse the costs.[7]

On 8 May 2023, the Applicant wrote that the equipment was not necessary. Mr Meeke responded to this email with a lengthy response. I have provided the email in full, which highlights many of the key issues raised in this matter.

“Good morning Vincent,
Firstly I should point out that AUCN Management, whatever that entity is, is not a signatory to the Central Approach Management Agreement therefore any communications to the Committee concerning that agreement, as you[r] message obviously is, should not originate from that entity.
All of the points that you have raised below are specifically pertinent to the Management Agreement between the Body Corporate for Central Approach and yourself and Grace who are referred to, jointly and severally, as ‘the Manager’ within that agreement so in order to avoid confusion I will use that term in my responses when I’m referring to issues that could apply to either one of you individually or jointly.
My response to your issues go into some detail for the benefit of those who may not be fully aware of what has been happening recently at Central Approach and are as follows:
Clause 5.3. Equipment and Materials of the Management Agreement states that all required tools, equipment and materials shall be provided by, and remain the property of, the Body Corporate.
For the avoidance of doubt this means that if the Body Corporate Committee decides that any particular equipment is required – such as tree pruning equipment because the trees have not been pruned for years (contrary to the last three external safety reports) – and instructs the Manager to purchase that equipment then the Manager does not have any right to disregard or veto that instruction and must comply with it. Future managers will certainly use the equipment even if the current manager chooses not to.
It is wrong to say that the Manager can continue to function without dedicated Body Corporate bins because it has been doing so for 13 years or that money could be saved by having just one green bin for the following reasons:
The current poor condition of the complex clearly illustrates that very little cleaning, pruning and garden maintenance has been carried out by the Manager in the past therefore there has been very little need for waste disposal bins in the past.
In the past the Manager has been putting Body Corporate waste in whatever lot’s bin were closest which cannot continue because:
This is illegal – the lot owners are paying Logan Council for those bins as part of their rates, the Manager has no right to use them and lot owners would be within their rights to demand that the Body Corporate pays for them instead.

There should be no bins accessible to be used outside of the private area of the lots and the only reason that bins are in fact available is that the Manager has consistently failed to enforce Clause 2.1 Cleaning and Grounds Maintenance – where necessary, of the Management Agreement i.e To cause and ensure that the wheelie bins are moved by the occupier to the main collection area for each garbage collection by Logan City Council. The garbage is to be collected and disposed of by the said Council and the wheelie bins are to be returned by the occupier to their respective area as soon as possible after collection by the Council.
Note: The ‘respective area’ referred to is the garage or the back yard as clearly stated in the two reminders issued to residents this year and the current attempt to enforce this by-law (12.2) cannot succeed when, as is currently the case, the Manager also fails to return their bins to the correct storage area.
The Manager has been irresponsibly dumping waste in the stormwater easement culvert adjacent to the visitors’ carpark (the most recent being the tree that I reported fallen on the 28^th of April) which is not only contrary to by-law No. 9: Leaving of Rubbish etc. on the Common Property: The owner of a lot must not leave rubbish or other materials on the common property, it is also illegal under Logan Council’s regulations concerning stormwater easement drains and has the potential to cause flooding with the complex in the event of extreme rain.
There is already only one new-green-waste bin, which only gets emptied every second week, but if your reference is rather to the two new general waste bins then they cost just $194 per year in total for the two of them and since both general waste bins. And the green-waste bin, were filled in a single day it’s impossible to understand how one bin could be considered to be sufficient.
The only way the owners could save that cost is for the Manager to continue to illegally use the owners’ bins, to allow those bins to be left at the front of the lots contrary to the by-laws and to illegally dump waste in the stormwater easement drain. This is neither a solution nor an example of good management.
Note: The additional $194 annual expense pales into insignificance compared to the fact that the Body Corporate now faces a bill in excess of $4,000 to rectify the blocked and overgrown stormwater easements and the overgrown trees throughout the complex, both of which are a direct result of the Manager’s past actions and inactions.
I presume that the reason you have stated that there are “terms and conditions” in the Management Agreement regarding committee approval “over a certain limit” is that it’s a defence against not having purchased the new equipment as instructed.
Clause 3.4 Expenditure of the Management Agreement clearly states that the Manager has the authority to incur expenses of $1,000 without committee approval and since the list of equipment that I sent totalled $378.34 that clearly did not require committee approval, although I informed the Committee as a courtesy, and should have been actioned without delay.
Your suggestion that in future I should “forward my advice to the body corporate manager accordingly according to procedure” is wrong as that is not the procedure under the Management Agreement”.

Clause 5.1(a) of the Management Agreement clearly states ‘ The Committee of the Body Corporate shall from time to time appoint a member of the Committee of the Body Corporate to give instructions to, and to communicate with, the Manager on behalf of the Body Corporate and since I am the Committee’s appointed representative I have the contractual right to do so and the Manager has the contractual obligation to respond to my instructions or enquiries ‘fully and freely’ as stated in the agreement.
Your rude “Happy retirement” statement is obviously intended to show that you think I should be ‘retired’ and have no say in the running of Central Approach but you could not be more wrong because that isn’t going to happen. I have a legal obligation to do so as a committee member under the BCCM Act, a contractual right to do so under the Management Agreement and because, as a lot owner, I have a financial interest in maintaining and maximising the market value of my property.

Conclusion:
Unfortunately, it is clear to me that there has been consistent resistance to my requests and instructions, and thinly disguised hostility in some instances, from the Manager ever since I was appointed to be the Body Corporate’s representative at the recent AGM and it is equally clear that this situation cannot continue.
Therefore, the Manager, should, without further delay, inform the Body Corporate Committee whether they are willing to put past performance issues behind them, as I am certainly willing to do, and in the future intend to comply with both the letter and the spirit of the Management Agreement, including full cooperation with the Committee’s appointed representative, in order that Central Approach will finally be – to quote the words of the Management Agreement – Maintained to a standard appropriate to a development of this type and quality’.
We await the Manager’s timely response.”

Mr Wang responded with the following on 10 May 2023:

“Hi John
First of all, my email only represents my personal opinion and does not represent GRACE. It’s not worth fighting with GRACE over this matter and getting a divorce.
John, please don’t misunderstand “Happy retirement” is just my greeting, I thought retirement is happy and enjoyable. It maybe people feel it in different ways.
Because I don’t like to work under the supervision of the boss. So I bought this small business with GRACE, this $400/week caretaker job is a contract job.
We are contractors, not employee. We can arrange our timeframe by following the instructions.”

On 10 May 2023, Mr Meeke wrote an email to the Applicant regarding the number of defects with the common property that was highlighted in a report titled Solutions in Engineering which was issued in March 2022. Mr Meeke noted that only 2 defects were rectified from a list of 61 defects. The Applicant and Mr Meeke engaged in further email correspondence regarding how the BC CTS 41004 should enforce the Management Agreement.

On 11 May 2023, the Applicant stated this was when he received the MRAS report.

On 12 May 2023, Mr Meeke sent an email requesting that the Applicant cooperate with him in the goal of complying with the Management Agreement before considering any default procedures such as a Remedial Action Notice (RAN).

On 1 June 2023, BC CTS 41004 received advice from Mahoneys Lawyers (Mahoneys) regarding the Applicant’s failure to comply with the requirements of the Management Agreement. Mahoneys had provided advice to BC CTS 41004 that that the Applicant and Mrs Jiang were in breach of several of their contractual obligations. The main breaches were that the Applicant and Mrs Jiang failed to reside at the Scheme property and failed to maintain the common property of the Scheme by not attending to general repairs.

On 2 June 2023, Mr Meeke took photos of the common property of BC CTS 41004 that compared the MRAS report findings to his observations on this day. This was sent to Mahoneys.

On 13 June 2023, BC CTS 41004 instructed Mahoneys to send correspondence to the Applicant and Mrs Jiang about the alleged breaches. In this letter, Mahoneys states the following:

“The Body Corporate is willing to defer issuing a Remedial Action Notice (RAN) and progressing any Termination Action, but only on the basis that you take immediate and meaningful steps to significantly improve your performance of the duties in the Agreement.”

The Applicant was given two weeks to take steps in significantly improve his performance of duties in the Management Agreement. The Applicant was required to confirm to Mahoneys and the BC CTS 41004 that he had addressed the deficiencies by no later than 30 June 2023. The Applicant was provided the photos taken by Mr Meeke on 2 June 2023 compared with the MRAS Report.

On 15 June 2023, the Applicant wrote an email seeking the removal of the RAN stating that he and Ms Jiang had been serving the BC CTS 41004 for 14 years and there were never any disputes with the lot owners regarding the state of the property. The Applicant stated he was working hard to fix the issues addressed on 13 June 2023.

On 26 June 2023, Mr Meeke sent an email to Mr Wang and Mrs Jiang which acknowledged that some remedial work was happening on the common property, but respectfully asked not to put more bark mulch down in areas that were previously stone-covered.

On 2 July 2023, the Applicant lodged a Stop Bullying application with the Commission.

On 4 July 2023, BC CTS 41004 instructed Mahoneys to send further correspondence regarding the Applicant’s failure to reside on site. The correspondence acknowledged that the Applicant was trying to remedy the performance issues set out in the MRAS report. However, there was a persistent issue with Mr Wang and Mrs Jiang not residing at BC CTS 41004 property. The Applicant was required to verify his residence.

On 5 July 2023, Mr Wang sent a document to Mahoneys. The document stated that he had delegated these duties to a person who was residing at the BC CTS 41004 premises. Mr Wang and Mrs Jiang were not residing at BC CTS 41004 at this time.

On 8 August 2023, BC CTS 41004 issued a RAN to the Applicant as they failed to comply with the terms of the Management Agreement after an evaluation of the premises took place on 26 July 2023.

During this period, the matter was allocated to me. I listed the matter for an in-person conference at the Commission on 18 August 2023 as there was distressing information contained in the Application form and subsequent emails to Chambers. During this conference, the parties agreed that the RAN would be extended to 29 September 2023. This was confirmed in an email by Mrs Jiang on 24 August 2023.

After the events of the conference, there were actions taken by the Applicant which caused distress to all parties involved. For the concerns of all parties, it was determined that further facilitating conferences to address the issues would not be of assistance. I determined that it would be necessary for the matter to go to Hearing. Directions were issued on 27 October 2023 and the matter was listed for Hearing on 4 December 2023.

The Applicant was self-represented, with assistance from Mrs Jiang. Mr Ben Sandford from Mahoneys was granted permission to appear under s.596 of the Act on behalf of BC CTS 41004 and the Persons Named. Permission to appear was granted on the basis that the matter was complex arising from the nature of the matter, the jurisdictional objection raised and the extensive procedural history of the matter.

Is BC CTS 41004 a constitutionally covered business?

The Respondent raised an objection that the Applicant was not ‘a worker at work in a constitutionally covered business’ and therefore the Commission does not have the jurisdiction to determine the Applicant’s stop bullying application under s.789FC of the Act.

The Respondent’s main argument is that BC CTS 41004 is not a ‘constitutional corporation’ and is not a ‘trading corporation’. It does not trade because the Body Corporate and Community Management Act 1997 (Qld) (the BCCM Act) prohibits BC CTS 41004 from carrying out a business, and that any trading activity was a peripheral activity. There was no commercial enterprise.

Is the BC CTS 41004 a corporation?

In addressing the Respondent’s objection, it is necessary to determine whether BC CTS 41004 is a corporation, and whether it is a ‘trading corporation’.

Section 789FD provides the following:
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;

Section 12 of the Act defines a constitutional corporation as a “a corporation to which paragraph 51(xx) of the Constitution applies.” Section 51(xx) of the Australian Constitution states that a constitutional corporation is a foreign corporation, and trading or financial corporations formed within the limits of the Commonwealth.

The High Court considered what a ‘full character of a corporation’ entails in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Queensland Rail [2015] HCA 11 at [37] – [38], [40]:

There is no reason to read s 51(xx) as granting power to deal only with classes of artificial legal entities having characteristics fixed at the time of federation. To read the provision in that way would hobble its operation. The course of events in the nineteenth century described in the Work Choices case points firmly against reading the provision as so restricted. And there is no textual or contextual reason to conclude that the parliament’s power with respect to trading or financial corporations formed within the limits of the Commonwealth should be frozen in time by limiting the power to entities of a kind that existed at federation. Nor is there any textual or contextual reason to conclude that the parliament should have legislative power with respect only to those entities constituted and organised under the laws of foreign states which are entities of a kind generally similar to those that existed or could be formed under foreign law as it stood in all its various forms in 1900.”
Like the federation considered in Williams, the authority is created as a separate right and duty bearing entity. It may own, possess and deal with real or personal property. It is an entity which is to endure regardless of changes in those natural persons who control its activities and, in that sense, has “perpetual succession”. Its constituting Act provides for mechanisms by which its assumption of rights and duties may be formally recorded and signified. The authority has “the full character of a corporation”.”
(Emphasis added)

Gageler J determined the following at [65] – [67]:

“[65] The term “corporations” is, and was in 1900, readily capable of encompassing all artificial legal persons; that is to say, all entities, not being merely natural persons, invested by law with capacity for legal relations. There is nothing in the context or in the rest of the Constitution to indicate that any narrower interpretation would best carry out the object and purpose of the conferral by s 51(xx) of a national legislative power with respect to both foreign corporations and trading or financial corporations formed within the limits of the Commonwealth. The constitutional context, both structural and historical, points in favour of the application of the broad orthodox historical meaning.
[66] The constitutional reference to foreign corporations encompasses all artificial entities invested with legal personality under other systems of law. The constitutional reference to corporations formed within the limits of the Commonwealth encompasses all artificial entities invested with legal personality under Australian law.
[67] Queensland Rail has legal personality because it is legislatively conferred with capacity to own property, to contract and to sue. It is unnecessary to consider whether any lesser subset of those attributes might suffice. The statutory declaration that Queensland Rail is not a body corporate does not deprive Queensland Rail of any of those attributes.”
(Emphasis added)

In assessing the BCCM Act, it appears that BC CTS 41004 appears to have its own legal personality which indicates that they are a ‘corporation’. The body corporate may:

have the authority to sue and be sued in its corporate name (Section 33(2) of the BCCM Act)
have the authority to enter into a transaction affecting common property, it may enter into the transaction, and execute documents related to the transaction, in its own name, as if it were the owner of an estate of fee simple in the common property.” (Section 35(6) of the BCCM Act).
enter into contracts (s.36 of the BCCM Act)
have the authority to sue and be sued for rights and liabilities related to the common property as if the body corporate were the owner of the common property (s.36(1) of the BCCM Act)
hold the body corporate assets beneficially. This includes the acquisition and disposal of a body corporate assets (s.45 of the BCCM Act)

I now consider whether the BC CTS 41004 is a financial or trading corporation.

Is the BC CTS 41004 a ‘financial’ or ‘trading’ corporation?

It is clear that BC CTS 41004 not a financial corporation as it does not borrow and lend or otherwise deal in finance as its principal or characteristic activity.[8] As a result, the only consideration that can be placed in determining whether BC CTS 41004 is a constitutional corporation determining whether it is a ‘trading corporation’.

Steylter P summarised the principles in considering if a corporation is a ‘trading corporation’ in Aboriginal Legal Service of Western Australia (Inc) v Lawrence [No 2][9] and his reasonings were adopted by the Full Court of the Federal Court in Bankstown Handicapped Children’s Centre v Hillman[10]:

“The more relevant (for present purposes) principles that might be drawn from these and other cases are as follows:

(1) A corporation may be a trading corporation even though trading is not its predominant activity
(2) However, trading must be a substantial and not merely a peripheral activity
(3) In this context, ‘trading’ is not given a narrow construction. It extends beyond buying and selling to business activities carried on with a view to earning revenue and includes trade in services.
(4) The making of a profit is not an essential prerequisite to trade, but it is a usual concomitant.
(5) The ends which a corporation seeks to serve by trading are irrelevant to its description. Consequently, the fact that the trading activities are conducted is the public interest or for a public purpose will not necessarily exclude the categorisation of those activities as ‘trade’.
(6) Whether the trading activities of an incorporated body are sufficient to justify its categorisations as a ‘trading corporation’ is a question of fact and degree.
(7) The current activities of the corporation, while an important criterion for determining its characterisation, are not the only criterion. Regard must also be had to the intended purpose of the corporation, although a corporation that carries on trading activities can be found to be a trading corporation even if it was not originally established to trade.
(8) The commercial nature of an activity is an element in deciding whether the activity is in trade or trading (citations omitted).”

Mahoneys have raised that BC CTS 41004 is not a trading corporation on the basis that it does not trade substantially, and when it does trade, it is a peripheral activity. This will be a question of fact and degree.

The following indicators of trade have been provided.

BC CTS 41004 does not or carry on a business (s.96 of the BCCM Act). However, it is not necessary that the activities of the business are required to make a profit.
BC CTS 41004 does not carry out a commercial enterprise.
BC CTS 41004 does carry out its functions of the owners of the lot in administering the common property which is an indication of trading activity. When the owner’s corporation or body corporate have complaints on the common property, and are requires invoices by the caretaker, this is trading activity.
The Applicant invoices and get paid for his work at the body corporate, and subject to the approval of the body corporate.
The Applicant can contract out his work.
BC CTS 41004 have engaged in trade in hiring BC Systems Pty Ltd to manage the administration which indicates trade.

Although some aspects of trade are identifiable, whether BC CTS 41004 trades in a substantial, or peripheral manner is difficult to determine with the limited evidence provided on this issue. I leave this question open for determination and move to the substantive portion of the matter given that is where the bulk of the evidence is focused upon.

Are the actions of the Persons Named considered to be bullying or reasonable management action?

In summary, the Applicant makes the following submissions of bullying by the Respondents.

a)BC CTS 41004 “requests that caretakers do chores that are not covered by the Management Agreement such as tree trimming, concrete repair, fence maintenance and wall cleaning” (Allegation 1 – Outside Scope allegation).

b)BC CTS 41004 has violated “worker safety regulations” by requesting that the Managers “remove seed pods from a palm tree 3 metres tall” and remove “branches from a stormwater culvert more than 2 metres deep” (Allegation 2 – Work Health and Safety allegation)
c)BC CTS 41004 required the Applicant to work at unreasonable time during heavy rain (Allegation 3 – Unreasonable working time requirement allegation)
d)BC CTS 41004 has “made troubles and has not yet paid certain invoices for cleaning garbage” (Allegation 4 – Non-payment allegation).
e)BC CTS 41004 has stopped the $1000 limit permitted by the property manager in order for caretakers to do more work outside the restrictions of the Management Agreement (Allegation 5 – Expenditure allegation)
f)BC CTS 41004 “supervise caretakers’ work and force open the entrance to the caretakers’ tool room to enter and snap pictures” (Allegation 6 – supervision allegation).
g)The Applicant is required to respond to “a huge number of emails every day” (Allegation 7 – email allegation)
h)BC CTS 41004 repeatedly asked “caretakers to promise full cooperation with the Committee’s appointed representative and repeatedly threatened to issue a Notice of Remedial Action (RAN)” (Allegation 8 – Non-compliant RAN allegation).

BC CTS 41004 has “abused and misinterpreted the terms of the Management Agreement and has charged him legal fees” (Allegation 9 – Unreasonable bills allegation).

Bullying occurs where the act is repeated, unreasonable and causes a safety risk at work pursuant to s.789FD(1). The Revised Explanatory Memorandum to the 2013 Fair Work Amendment Bill notes House of Representatives Standing Committee on Education and Employment Inquiry titled Workplace Bullying ‘We just want it to stop’ definition of what bullying is.

a)‘Repeated behaviour’ refers to the persistent nature of the behaviour and can refer to a range of behaviours over time.’
b)‘Unreasonable behaviour’ is behaviour that a reasonable person, having regard to the circumstances may see as unreasonable (in other words it is an objective test). This would include (but is not limited to) behaviour that is victimising, humiliating, intimidating or threatening.
c)These behaviours cause a risk to health and safety.

The Explanatory Memorandum notes the following on Reasonable Management Action:

‘112. Persons conducting a business or undertaking have rights and obligations to take appropriate management action and make appropriate management decisions. They need to be able to make necessary decisions to respond to poor performance or if necessary take disciplinary action and also effectively direct and control the way work is carried out. For example, it is reasonable for employers to allocate work and for managers and supervisors to give fair and constructive feedback on a worker’s performance. These actions are not considered to be bullying if they are carried out in a reasonable manner that takes into account the circumstances of the case and do not leave the individual feeling (for example) victimised or humiliated.’

Commissioner Hampton summarised the key considerations in determining ‘reasonable management action’ in Application by Ms SB [2014] FWC 2104 at [47]-[52]:

It is an objective assessment of the action in the context of the circumstances and knowledge of those involved at the time. Without limiting that assessment, the considerations might include:
● the circumstances that led to and created the need for the management action to be taken;
● the circumstances while the management action was being taken; and
● the consequences that flowed from the management action.
The specific ‘attributes and circumstances’ of the situation including the emotional state and psychological health of the worker involved may also be relevant.
The test is whether the management action was reasonable, not whether it could have been undertaken in a manner that was ‘more reasonable’ or ‘more acceptable’. In general terms this is likely to mean that:
● management actions do not need to be perfect or ideal to be considered reasonable;
● a course of action may still be ‘reasonable action’ even if particular steps are not;
● to be considered reasonable, the action must also be lawful and not be ‘irrational, absurd or ridiculous’;
● any ‘unreasonableness’ must arise from the actual management action in question, rather than the applicant’s perception of it; and
● consideration may be given as to whether the management action involved a significant departure from established policies or procedures, and if so, whether the departure was reasonable in the circumstances.
For the circumstances in s.789FD(2) of the FW Act to apply, the management action must also be carried out in a ‘reasonable manner’. Consistent with the approach above, what is ‘reasonable’ is a question of fact and the test is an objective one.
In considering the above principles, I note the following allegations raised by the Applicant.

Bullying allegation 1 – ‘Outside Scope’ allegation

The Applicant alleges that bullying behaviour occurred because Mr Meeke requested that the Applicant perform duties that are not covered by the Management Agreement such as tree trimming, wall cleaning, concrete repair and fence maintenance.

Schedule 2 of the Management Agreement outline some of the Applicant’s general duties and specific duties that are in contention. A few of the clauses are outlined below:

1.   General Duties
1.1      Supervise any agents, contractors or employees of the Body Corporate or the Manager engaged in gardening, cleaning, building maintenance or any other work.
1.2      Use its best endeavours to see that the Property (other than the interior of lots) is kept in good order and repair clean and neat and to protect the interests in relation thereto of the Body Corporate and the owners of lots therein.
1.5      Reside, or if the Manager is a corporation ensure that the person performing the duties of the Manager pursuant to this Agreement resides, in a lot forming part of the Community Titles Schemes.
1.7      Report promptly on all things requiring repair and, on all matters, creating a hazard or danger and take remedial action where applicable.
1.8       To arrange for the appointment and supervision of contractors (as required by the Body Corporate) for the provision of maintenance services including plant and equipment maintenance, maintenance of drainage pumps, flood gates and valves and other services or such of them as the Manager shall deem advisable provided that all contracts shall be subject to the prior approval of the Body Corporate.
1.9      Comply with and carry out all reasonable directions from time to time given by the Body Corporate to the Manager in or about the administration and management of the Property and the performance by the Body Corporate of its lawful obligations and duties.

2. Specific Duties
2.1 Cleaning and Grounds Maintenance – weekly routine where necessary
Sweep all pathways and hose clean if necessary. Hose clean and scrub where necessary all outdoor furniture to remove dirt stains. When appropriate cut grass and trim edges and suitably dispose of clippings. Weed lawns and gardens and cut back any dead plant growth. Ensure that the sprinkler system for watering the gardens and lawns is fully operational. Report any problems in the sprinkling system or the maintenance of the grounds as soon as possible.
2.2 Cleaning and Grounds Maintenance – monthly routine where necessary
Trim hedges, prune any shrubs, trees or plants as necessary. Remove any dead palm fronds and any dead plants. Fertilise all lawns and gardens (seasonally). Check condition of soil in gardens and replenish if necessary.

The Applicant has been asked by BC CTS 41004 to perform those tasks specifically covered under the Management Agreement.

Wall cleaning, concreting and fence maintenance appear to fall under general building maintenance in the General Manager duties per clause 1.1 of the Management Agreement. Tree trimming is a specific duty that the Applicant is responsible for per clause 2.2 of the Management Agreement.

The Applicant has not substantiated that the Respondent asked for work to be completed beyond the scope of the Agreement. The initial instructions from Mr Meeke were straightforward and not onerous when he asked the Applicant to purchase tools from Bunnings. Mr Meeke was frustrated with the Applicant’s general performance of his duties when the Applicant did not want to comply with this request on 8 May 2023.

The long list of items that Mr Meeke identified in this email were not outside the scope of enforcing the Management Agreement, as he would cite specific clauses in the Management Agreement and the tasks required.

The requests made by the Respondent in terms of the scope of the work were not bullying. The requests were reasonable management action taken in a reasonable manner in line with what the Applicant was expected to perform under the Management Agreement. Therefore, this is not bullying behaviour.

Bullying allegation 2 – Work Health and Safety allegation

The Applicant alleged that there was a breach of Work Health and Safety regulations when Mr Meeke asked the Applicant to remove seed pods from a palm tree 3 metres tall and remove the branches from a stormwater culvert more than 2 metres deep.

Mr Meeke wrote to the Applicant on 15 May 2023 requesting the Applicant obtain 3 quotes for the clearing of the stormwater easements and tree pruning. Mr Meeke noted that the quotes returned via the Applicant were for the removal of most of the mature trees in the complex, and that not one of the quotes included clearing out of the stormwater easement.

On 13 June 2023, Mr Meeke sent an email noting that the last two independent maintenance reports identified that trees should be pruned so as not to be on the roofs of properties, the stormwater easement should be cleared of pruning and debris and a number of trees needed to be pruned. He noted that 15 months had passed since these two items were identified for action and the current quotes had not been in accordance with the request to obtain three quotes and to submit them to BC CTS 41004.

The Applicant was not requested to undertake a hazardous activity that might put him at risk. The specialised work could be tendered out and the quotes submitted for approval to the Body Corporate per clause 1.8 in the Management Agreement. Mr Wang was always able to contract out this work and claim reimbursement which was encouraged by Mr Meeke. It appears that the Applicant did not brief the contractors per the requirements in the Management Agreement, nor follow the direction of Mr Meeke in addressing the stormwater easement.

The request was reasonable management action taken in a reasonable manner in line with what the Applicant was expected to perform under the Management Agreement. This is not bullying behaviour.

Bullying allegation 3 – Unreasonable working time requirements

The Applicant states that he was required to work in heavy rain under time pressure following an email from Mr Meeke on 4 July 2023 at 10:43am titled ‘Unacceptable complex condition’ and that the short time frame meant that Mr Meeke’s direction was unreasonable.

In this email, Mr Meeke stated that the residents at BC CTS 41004 had been met with sights of garbage bins surrounded by litter for the past 5 days and that BC CTS 41004 waste bins were to be stored in the Manager’s shed. Mr Meeke raised an issue that there were rain-sodden local newspapers on the wall above the mailboxes, oil or paint-stained driveways and litter and assorted rubbish scattered throughout the complex.

The Applicant was given until 5pm that day or the Committee would reach the conclusion that the Applicant had abandoned their duties under the Management Agreement and, to meet its obligations under the BCCM Act, will have no option but to engage an independent contractor to clean up the complex at the Manager’s expense.

Mr Meeke provided the following evidence at the Hearing in response:

“Mr Wang had not come to the complex for more than two weeks, so talking about, within the committee, we sort of - we were under the impression that he had abandoned the contract, as a protest against being asked to work. On that day there were several large bags of, you know, like a kitchen waste bin white plastic bag thing laying around the entrance. There was a huge pile of junk mail on the ground, and it had been there for five days before I finally had to send him the notice to come and do it, otherwise we would have had to have got Jim's Mowing, or a franchise or something, to do it. His response was that it was new rubbish because he had been there the day before. So I then sent the reply email, with five of the photos, because I'd taken ever day, with a date stamp on, proving that they had been there for five days, and he never responded to that. It wasn't raining. He later sent an email with a load of pictures on, of which you can see, in the pictures, none of them - it's not raining in any of them. But my response to him was, if it was raining, you are a contractor whose entire contract is working outdoors. You must have wet weather gear to wear if it's raining. But it wasn't raining. It had been raining and the rain wandered off during the day. What he was requested could have been done literally in one minute. Pick up five bags, put it in a wheelie bin, done.”[11]
(emphasis added)

During cross-examination, Mr Wang noted that he would go to BC CTS 41004 roughly about two times a week.[12] Mrs Jiang would not undertake work at BC CTS 41004.

The evidence provided by Mr Meeke indicated that this request was in response to the Applicant not performing his duties, which I accept to be truthful. At this stage of the dispute, the Applicant was already on formal notice regarding his performance issues by Mahoneys. The Applicant was observed not to have attended the complex for two weeks.

Although I accept that the Management Agreement required the Caretakers to ‘duly and punctually perform’ the duties, there was an ultimatum placed on the Applicant stating he had abandoned his Management Agreement if the Applicant did not complete it within the necessary time frame. It did appear to be an ‘ultimatum’.

I understand that Mr Meeke had limited his interactions with the Applicant, possibly to provide the Applicant a bit more autonomy to correct the performance issues. However, the action in issuing the ultimatum may have been unreasonable and could have been addressed in a different way. This allegation will be considered with the other allegations.

Bullying allegation 4 - Non-payment allegation

The Applicant raised that there was bullying behaviour as Mr Meeke and Ms Leggatt, as they would not reimburse the Applicant for services performed.

For instance, On 15 June 2023, Mr Meeke wrote an email asking if the Applicant could organise a 3 cubic metre skip to remove the rubbish that was accumulated in the Building Manager’s shed. Mr Meeke checked the quote, and the costs would be $269. The Applicant’s would be required to pay this amount and would be reimbursed by BC CTS 41004. When Mr Meeke stated that the Applicant would be required to immediately remove all the excessive debris from the trees and hedges at no cost to BC CTS 41004, it simply meant that the Applicant was required to clean up afterwards. This was not an onerous request.

In Mr Meeke’s subsequent witness statement, he stated that the contractor was engaged by the Applicant at a cost of $660 and that the Applicant did not provide the required information on the invoice that would enable payment. It appeared that Mr Meeke had some concerns regarding the legitimacy of the Applicant’s invoicing.

I find the concerns of proper invoicing credible, for instance there was an invoice issued for $28,618.56 by AUCN Management to BC CTS 41004 on 4 May 2023. On review of the invoice, there are no particulars or itemisation of the amount of the tax invoice. I accept that it likely would not have conformed with the requirements of BC CTS 41004.

When Mr Meeke stated that the Applicant would be required to immediately remove all the excessive debris from the trees and hedges at no cost to BC CTS 41004, it simply meant that the Applicant was required to clean up afterwards. This was not an onerous request.

Mr Meeke stated that there were instances where even though the invoices were deficient, BC CTS 41004 did reimburse the Applicant. Ms Leggatt sent an email to Mrs Jiang which stated that she would process the invoice. Although the Applicant claims that he has not been paid, there does not appear to be any evidence that the Respondent delayed unduly or deliberately took an extended period to pay the Applicant for invoices submitted for payment. This allegation of bullying has not been substantiated.

Bullying allegation 5 – Expenditure allegation

Furthermore, the Applicant alleged that the Mr Meeke and BC CTS 41004 placed an expenditure limitation which prevented him from performing his work.

In terms of the expenditure limits, Clause 3.4 of the Management Agreement provides that the Managers are entitled to:

“incur an expense on its own behalf in respect of any individual transaction for an amount not exceeding one thousand dollars … or such amount as the committee of the Body Corporate may from time to time authorise in writing and the body corporate shall reimburse the manager on demand in respect of such expense provided that such expense is incurred for the purpose of obtaining goods or services used in the proper performance of the duties of the manager pursuant thereto”

The expenditure allowance has not been altered or suspended by the Respondent. The amount is the same. The Applicant proposed that the limit was being used in some way to restrict his ability to perform his role, in that this limits the work he can perform or get done before he requests approval.

There is no restriction on the performance of work that would incur expenses of over $1000, other than obtaining express approval prior to the costs being incurred. The setting of a limit above which approval is required is an appropriate financial control contained in the Management Agreement.

There was limited evidence to establish that BC CTS 41004 had deliberately withheld payment or approval. This allegation of bullying has not been substantiated.

Bullying allegation 6 – Supervision allegation

The Applicant alleges that bullying occurred when Mr Meeke supervised the Applicant’s work and took photos of the Tool Room without being informed.

Mr Meeke stated that he never supervised the Applicant’s work or raised items of work with the Applicant if they have not been performed. Mr Meeke stated that the tool shed was open and inspected it to ascertain whether the tools requested on 8 May 2023 had been purchased.[13] It appeared that the photo taken by Mr Meeke was undertaken to prepare a review the condition of BC CTS 41004 on 2 June 2023.

BC CTS 41004 have oversight of the work performed under the Management Contract. In that capacity, the members review the state of the property to ensure that the standards as set out in the Management Agreement are maintained. Mr Meeke did request specific tasks to be performed by the Applicant. However, I do not find with the evidence provided before me, that Mr Meeke had directly supervised the Applicant’s performance of his obligations. They were requests on behalf of BC CTS 41004.

In the alternative, supervision may have been reasonable management action the Applicant’s inability to perform his management duties and had been given multiple warnings regarding his performance.
Although the Applicant may have been unhappy with photos being taken of his toolshed, which I note is common property and the Applicant’s inability to follow requests makes the actions undertaken reasonable. This allegation of bullying I find to be reasonable management action.

Bullying allegation 7 – Mass email accusation

The Applicant alleges that the volume of emails from Mr Meeke was bullying. This was due to it taking away time from him earning an extra income as an Uber driver and taking him a long time to respond to these emails. Mr Meeke stated that during the peak number of issues he would send an email at most ‘once or twice a week’.

On a review of all the correspondence that was provided by the Applicant, it appeared that Mr Meeke would email only when there were requests by BC CTS 41004. These emails varied in length, with some emails containing a significant amount of detail, and some emails containing a response to the Applicant. The dates that Mr Meeke emailed are as follows:

4 May 2023– first email
5 May 2023
8 May 2023
9 May 2023
10 May 2023
11 May 2023
13 May 2023
15 June 2023
27 June 2023

10.28 June 2023
11.4 July 2023 – last email

On review of the contents of the email, the requests by Mr Meeke are about work requested by BC CTS 41004. The longest email is on 8 May 2023 which highlighted the works that were not undertaken by the Applicant, or issues with the condition of BC CTS 41004. The length of the email may have overwhelmed the Applicant, but it would not be categorised as bullying based on the content of the email. At no point was there improper conduct by Mr Meeke in the content of the emails, although the request regarding Allegation 3 might have been unreasonable.

The emails themselves were a reasonable requirement of Mr Meeke to perform his functions as the representative of BC CTS 41004. Mr Meeke was not sending a high volume of correspondence everyday asking for items to be actioned. Given that the Applicant is not supervised, the emails were the way to communicate any duties that needed to be performed at the request of BC CTS 41004.

Mr Meeke ended up corresponding less with the Applicant once a more formal process was implemented in addressing issues at BC CTS 41004.

The request was reasonable management action taken in a reasonable manner in line with what the Applicant was expected to perform under the Management Agreement. This is not bullying behaviour.

Bullying allegation 8 – Non-compliant RAN allegation

The Applicant alleged the issuing of Remedial Action Notice (RAN) and the invoice of legal fees issued by Mahoneys are bullying behaviour.

Mr Wang and Mrs Jiang were put on notice regarding their failure to carry out their duties on 3 April 2017 in keeping the property into good order. The complaints from 2017 were consistent with a Report regarding the Applicant’s poor work performance on the property on 2 December 2022 undertaken by Management Rights Advice & Services Consultants (MRAS).

The Report stated that MRAS undertook an inspection of the property on 30 November 2022 (MRAS Report). There were over 100 issues identified in this report which included:

Not placing signage on external entrance.
Mould buildup on external entrance.
Managers Storeroom requires clean up.
Bollard lights not working.
Utility vents need concrete encasement.
Leaves in spitter drains.
Drains requiring clearing.
Rusting brackets present on pipework.
Fencing and paling repairs.

10.Monitoring oiled staining in car parking spaces.
11.Driveways areas with long term build-up.
12.Issues with tree hights, leaves in the common area, broken sewer caps, bollard lights and fence palings.

Mr Meeke tried to informally raise these issues on 8 May 2023 via email. As there was more back and forth between Mr Meeke and the Applicant, the problems were identified again on 10 May 2023. The Applicant was notified that a defect notice would be issued if he continued to be in breach of his duties. On 10 May 2023, Mr Meeke identified the existence of an independent report of March 2022 titled ‘Solutions in Engineering’ which listed 61 defects, of which only 2 were rectified.

These issues were not fixed by 1 June 2023, and this was confirmed through BC CTS 41004 receiving advice from Mahoneys. There was a comparison of the MRAS report to the conditions photographed on 2 June 2023 that demonstrated the Applicant not performing his duties per the Management Agreement.

The Applicant was warned on 13 June 2023 about his non-compliance with his management duties. At this time, Respondent did not issue a RAN which gave the Applicant an opportunity to rectify the issues raised in the MRAS report.

The Applicant had taken action to address the MRAS report, and sent photos of the following which appear to have been actioned as of 13 June 2023:

Cleaned the mould buildup on the external entrance.
Cleaned the runoff on the street,
Repaired the fences.
Concreted the broken sewer caps.
Remove[d] pods from the palm tree.
Clearing of roadway drain
Clean[ed] up the storage shed.
However, it appears that some items were not actioned. For instance:

Stormwater culvert still blocked.
Dead palm fronds next to the palm trees.
Lack of clearance of the tree branches
Trees touching houses that require trimming.
Did not top up garden beds.

On 15 June 2023, the Applicant emailed Ms Leggatt stating that BC CTS 41004 had applied to withdraw the RAN on the basis that the Applicant had taken actions to rectify these issues. A RAN was not issued to the Applicant.

On 8 August 2023, Mahoneys issued a RAN as the Applicant was still in breach of the Management Agreement. I note the following in bold.

Failed to reside on the site per clause 1.5 of the Management Agreement. This was verified at Hearing when Mr Wang and Mrs Jiang noted they were not residing at the BC CTS 41004. This is substantiated.
Failed to trim the low hanging branches and twigs situated over the roadway, visitor carpark and water tank areas. This is substantiated.
Failed to obtain at least two quotations for a contractor to trim the high-hanging tree branches of multiple properties on the scheme. This is substantiated.
Failed to remove all weeds, dead plants, litter and debris from garden beds. This may have been an excessive request.
Failed to remove excess items from the storage shed on common property. This may have been an excessive request.
Failed to remove soil wash, leaf litter and debris from the driveway gutters. This is substantiated with photos taken on 15 June 2023, 1 July 2023, 3 July 2023 and 14 July 2023.
Failed to remove oil and paint stains within the driveways. This is substantiated.
Failed to remove mould from the concrete pads of the utility breather pipes. This has not been fully substantiated.
Failed to carry out edging of the front footpath. This may have been slightly exaggerated.

10.Failed to gather up grass clippings and disposing of them into a green waste or general waste bin. This is substantiated.
11.Failed to obtain quotes for a contractor to clean the stormwater culvert. This is substantiated.
12.Failed to obtain quotations for a contractor to fix broken rainwater pipes. This is substantiated.
13.Failed to top up stones on garden beds. This is substantiated.
14.Failed to report recyclable bins not being within individual garages. This is substantiated.

The issuance of the RAN was not something BC CTS 41004 intended to do at first instance. It was issued because of the Applicant’s neglect to perform his duties. The Applicant was only issued the RAN after the following:

Letter issued by BC CTS 41004 on 3 April 2017
Email from Mr John Meeke on 8 May 2023
Email from Mr John Meeke on 10 May 2023
Received MRAS Report identifying defects on 11 May 2023
Letter from Mahoneys on 13 June 2023
Letter from Mahoneys on 4 July 2023
Issuance of RAN on 8 August 2023
Extension agreed by the parties after a conciliation conference at the Commission for the Applicant to correct issues with BC CTS 41004 to 29 September 2023

The Applicant had been provided at least 8 recorded and detailed warnings regarding the consequences of not rectifying the defects identified before a RAN was issued. I do note the large volume of issues that the Applicant had to correct over 3 months. However, some of the tasks were straightforward, such as seeking an invoice for contractors. These were not complex requests which the Applicant could have rectified. These were requested by Mr Meeke before formal methods were adopted.

Formal methods were required for the Applicant to address issues raised about the common property as informal procedures were not working. The Respondent has largely substantiated their reasons for issuing a RAN and I consider it to be reasonable management action rather than bullying behaviour.

Bullying allegation 9 – Unreasonable bill allegation

The Applicant states that Mahoneys and BC CTS 41004 bullied him by sending him legal fees on 8 August 2023, 5 September 2023, 28 September 2023 and October 2023. The invoices were reflective of the legal advice provided by Mahoneys to BC CTS 41004. This question within the scope for me to determine, considering that Mahoneys are not listed as a Persons Named. However, I have considered this matter for completeness.

Clause 8.5(b) of the Management Agreement provides that:

Where a party is in default under the Agreement it must pay any reasonable costs (including legal costs on a solicitor and own client basis) incurred by the other party in connection with the default. This includes:
1.Costs incurred in gaining legal advice

2.The attempted exercise of a power, remedy or right; or

3.The institution of legal proceedings in regard of the default

BC CTS 41004 had been incurring costs due to the Applicant’s non-compliance with the requirements under the Management Agreement. BC CTS 41004 did not have success with the informal approach and so had been initiating a formal process to require the Applicant to undertake his work in accordance with the Management Agreement.

As set out above in Application by Ms SB, reasonable management action does not need to be perfect or ideal to be considered reasonable and can be considered reasonable if particular steps are not met. Further, any ‘unreasonableness’ must arise from the actual management in question rather than the Applicant’s perception of it.

The Applicant had been put on notice on 6 occasions before he was charged with the legal fees. I do note that Mahoneys did not inform the Applicant clearly in the formal letters provided on 13 June 2023 and 4 July 2023 that there would be costs incurred in BC CTS 41004 receiving legal advice would be passed onto the Application.

The Applicant is not a native English speaker and may have been blindsided by receiving the legal fees along with the RAN, particularly when it was not clearly put before him in direct contrast to the other BC CTS 41004 issues, which were clearly identified with the relevant clauses in the Management Agreement.

However, the matter would not constitute bullying. Mahoneys was technically entitled to enforce the legal right provided by clause 8.5(b) of the Management Agreement.

As set out above in Application by Ms SB, reasonable management action does not need to be perfect or ideal to be considered reasonable and can be considered reasonable if particular steps are not met. Further, any ‘unreasonableness’ must arise from the actual management in question rather than the Applicant’s perception of it.

The legal fees associated with the two letters notifying the Applicant of the consequences of failing to remedy issues in BC CTS 41004 were a 2-month period of formal notice. The letters flowed from the repeated notices that a RAN would be issued, and the potential termination of the Management Agreement had the Applicant not addressed the continual issues raised by BC CTS 41004.

For the purposes of determining the bullying application against BC CTS 41004, it is accepted that the management action was reasonable as it was a consequence of the Applicant’s non-compliance with rectifying the issues of the common property at BC CTS 41004. This allegation of bullying had not been substantiated.

Is there future risk of ongoing harm?

The above actions are primarily reasonable management action undertaken to address the Applicants deficient work performance and therefore there is no future risk of on ongoing harm.

There were actions of Mr Meeke which might have been a bit hasty or curt at times arising from a language barrier between himself and Mr Wang. However, it was clear that these requests were based on reasonable management action. The Applicant had not performed the required works specified under the Management Agreement over a significant period of time.

Mr Meeke once he was appointed, attempted to address these long-standing performance deficiencies in an informal manner. The Applicant resisted being held accountable to their contractual obligations and when they did not address the matters then the Respondent had little choice but to proceed to the formal process C CTS 41004.

Following these events, Mr Meeke stepped down as BC CTS 41004 Representative position from July 2023 and did not correspond with the Applicant after the events of this matter. There is no future risk of ongoing harm from Mr Meeke. The Applicant has provided correspondence since the Hearing that states that Mr Meeke was still a part of BC CTS 41004. I do not find that Mr Meeke would have any reason to communicate with the Applicant now, given he is no longer in the Representative role. Therefore, there is little future risk of ongoing or future harm.

Ms Leggatt had limited interaction with the Applicant, limited to the invoicing of works undertaken by the Applicant. I do not find there to be any bullying behaviour by Ms Leggatt, nor there to be a future risk of ongoing harm.

Conclusion

Following the Hearing, the Applicant has raised concerns that Mahoneys and BC CTS 41004 are now following through with the termination process of the Management Contract. The Applicant has expressed distress to Chambers and has placed his hopes on the Commission to stop this process.

I emphasise that individuals should not applying to the Commission to resolve issues under the Anti-Bullying jurisdiction to help resolve issues such as:

Body Corporate elections – Who is appointed a representative of the body corporate? Who is appointed to the body corporate committee?
How the contractual arrangement between the body corporate and the individual should be enforced.
Any action that has been enforced by the body corporate as part of a contractual agreement executed in a reasonable manner.

These types of issues are not ones that the Commission should be determining under this jurisdiction.

Although I have left the determination of whether a body corporate is a ‘trading corporation’ open. The bullying behaviour by the Persons Named has not been established, and therefore a Stop Order will not be issued.

The Commission would not be able to enforce an Order which prevents BC CTS 41004 from enforcing their contractual rights.

The Application is dismissed on the following grounds:

· The primary allegations raised by the Applicant are reasonable management action and the bullying has not been substantiated;
· There is no future risk of ongoing harm by the Persons Named and;
· Issuance of a Stop Order in this matter would have limited applicability in stopping BC CTS 41004 from enforcing their contractual rights.

I Order accordingly.

DEPUTY PRESIDENT

Appearances:

W. Wang as the Applicant.
B. Sandford from Mahoneys Lawyers appearing on behalf of the Respondent and Persons Named

Hearing details:

4 December 2023.
Brisbane.

[1] First Witness Statement of John Meeke 13.

[2] Witness Statement of Sonia Leggatt [3]-[5].

[3] Witness Statement of Sonia Leggatt [3]-[5].

[4] Witness Statement of John Meeke affirmed 8 November 2023, 14.

[5] Witness Statement of John Meeke affirmed on 8 November 2023.

[6] Witness Statement of John Meeke 13.

[7] Applicant’s submissions

[8] Re Ku-Ring-Gai Co-operative Building Society (No 12) Ltd [1978] FCA 50 at [4] (Bowen CJ and Deane J).

[9] [2008] WASCA 254 at [69].

[10] (2010) 182 FCR 483.

[11] Transcript of Hearing PN1370.

[12] Transcript of Hearing PN722.

[13] Second Witness Statement of John Meeke affirmed on 30 November 2023 at [5]

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