DECISION

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

Ms Marie Pasalskyj
(AB2015/407)

COMMISSIONER HAMPTON

ADELAIDE, 13 NOVEMBER 2015

Application for an order to stop bullying – whether workplace conducted by a constitutionally covered business – incorporated association providing services to prisoners - whether trading corporation – extensive government funding – whether funded activities and income should be treated as trading – many activities not in the nature of the government purchasing commercial services – whether other income producing activities trading in nature and significant – some trading activities found – trading activities significant and sufficient to impact upon the character of the association – trading corporation – jurisdiction to deal with alleged conduct found – application to be listed for hearing.

1. Background and case outline

[1] Ms Marie Pasalskyj has made an application under s.789FC of the Fair Work Act 2009 (the FW Act) 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 Outcare Inc T/A Outcare (Outcare or the employer).

[2] Outcare is a community services organisation that provides a range of services to offenders and former prisoners and their families in Western Australia. Ms Pasalskyi is the Manager of the employer’s Family Care Centres that are operated in the prisons for the Department of Corrective Services (WA) (DoCS).

[3] Having conducted preliminary proceedings, arrangements were made for the determination of the application. In the course of that preparation, Outcare raised a jurisdictional objection concerning its status as an organisation.

[4] It is common ground that for Ms Pasalskyj’s 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 FW 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] Outcare is located in Western Australia and does not fall within the scope of s.789FD(3)(a)(ii), (iii), (iv) or (b). Accordingly, in order to fall…

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 Marie Pasalskyj

Details

AGLC: Ms Marie Pasalskyj [2015] FWC 7309
Case: [2015] FWC 7309
Decision Date: 13 NOVEMBER 2015

CaseChat Overview and Summary

In the Federal Circuit Court, Ms Marie Pasalskyj made an application for an order to stop workplace bullying. The respondent was an incorporated association that provided services to prisoners, including education, vocational training, and counselling. The association relied on the Corporations Act 2001 to argue that the Court did not have jurisdiction to hear the matter. The legal issues before the Court were whether the association's activities were conducted by a constitutionally covered business and whether it was a trading corporation. The Court found that the association's activities were not solely in the nature of government purchasing commercial services, and some of the association's activities were trading in nature and significant. The Court found that the association's trading activities were significant and sufficient to impact upon the character of the association, and that it was a trading corporation. The Court held that it had jurisdiction to deal with the alleged conduct and ordered that the application be listed for a hearing.

Orders