Ms Kathleen McInnes - [2014] FWC 1395

[2014] FWC 1395

FAIR WORK COMMISSION

DECISION

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

Ms Kathleen McInnes
(AB2014/1009)

COMMISSIONER HAMPTON

ADELAIDE, 24 MARCH 2014

Application for an FWC order to stop bullying - related Full Bench matter - further jurisdictional objection - whether constitutionally-covered workplace - whether constitutional corporation - whether trading corporation - community services organisation - nature of funding and activities considered - distinction between government funding for contract services and grant funding to support programs - funded activities lack trading character - trading activities insignificant, peripheral and incidental - not a trading corporation - no jurisdiction - application dismissed.

1. Background and case outline

[1] Ms Kathleen McInnes has made an application under s.789FC of the Fair Work Act 2009 for an order to stop bullying conduct she alleges has taken, and may in the future take place, within her workplace. The workplace concerned is conducted by Peninsula Support Services Inc. T/A Peninsula Support Services (PSS).

[2] PSS has raised a number of jurisdictional objections to the application.

[3] One of these objections was very recently considered by the Full Bench in McInnes v Peninsula Support Services Inc. T/A Peninsula Support Services[2014] FWCFB 1440. That decision dealt with a jurisdictional issue which arose concerning the timing of events relied upon by Ms McInnes. Given the findings 1 of the Full Bench, it is appropriate for me to now determine the other jurisdictional issue that was heard in parallel with the Full Bench matter.

[4] It is common ground that for Ms McInnes’ application to proceed, the behaviour must have taken place in a workplace that is conducted by a constitutionally-covered business. This arises from s.789FD of the Act, which is in the following terms:

“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;

then the business or undertaking is a constitutionally-covered business.

[5] PSS is located in Victoria and does not fall within the scope of s.789FD(3)(a)(ii), (iii), (iv) or (b). Accordingly, in order to fall within the scope of s.789FD, PSS must be a constitutional corporation.

[6] The term “constitutional corporation” is defined in s.12…

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 Ms Kathleen McInnes

Details

AGLC: Ms Kathleen McInnes [2014] FWC 1395
Case: [2014] FWC 1395
Decision Date: 24 MARCH 2014

CaseChat Overview and Summary

Ms Kathleen McInnes brought an application before the Fair Work Commission, seeking an order to stop bullying in her workplace. The Full Bench of the Commission considered the matter, with a further jurisdictional objection being raised. The central issue was whether the workplace fell under the constitutional definition of a corporation, which would grant the Commission jurisdiction over the matter.

The court examined whether the community services organisation in question was a constitutionally-covered workplace. This involved determining whether the organisation was a constitutional corporation, specifically whether it was a trading corporation. The nature of the organisation's funding and activities was pivotal in this analysis. The court distinguished between government funding for contract services and grant funding to support programs. It found that the activities funded by the organisation lacked a trading character and that any trading activities were insignificant, peripheral, and incidental. Consequently, the organisation did not meet the criteria to be considered a trading corporation.

Given the findings, the Full Bench concluded that the Commission did not have jurisdiction to hear the matter. The application was dismissed, as the workplace did not fall within the constitutional definition of a corporation. The reasoning was based on the nature of the organisation's activities and the source and purpose of its funding, which did not meet the necessary criteria for jurisdictional coverage.

Orders