Ms S.W. - [2014] FWC 3288

[2014] FWC 3288

FAIR WORK COMMISSION

DECISION

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

Ms S.W.
(AB2014/1135)

COMMISSIONER HAMPTON

ADELAIDE, 2 JUNE 2014

Application for an FWC order to stop bullying - workplace conducted by State government department under the terms of State legislation - identity of the employer - scope of anti-bullying jurisdiction discussed - relevance of national system employer - whether workplace is constitutionally-covered - not conducted by the Commonwealth or in a Territory - whether trading or financial corporation - not a corporation - no jurisdiction - application to be dismissed.

1. Background and case outline

[1] Ms S.W. 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 applicant is a teacher employed under the School Education Act 1999 (WA) (School Education Act) and the workplace concerned is a public school conducted by the Western Australian Department of Education (the WA Department).

[2] The WA Department contends that it has been incorrectly cited as being Ms S.W.’s employer and that in any event, the application is beyond the jurisdiction of the Commission due to the nature of the employer and the workplace. In particular, it contends that the workplace is not a constitutionally-covered workplace and as such the anti-bullying provisions of the FW Act do not apply.

[3] Ms S.W. contends that the WA Department is her employer and that FW Act applies given that it is binding upon the “Crown”. 1 She further contends that “State public sector employment” is defined2 in the Act and that the Act extends the definition of national system parties to a “referring State”.3

[4] I also understand that Ms S.W. contends that the objects 4 of the FW Act are illustrative of the broad coverage of that Act, and in that light, the Commission has the necessary jurisdiction.

[5] The parties agreed that I should determine this application based upon written submissions. Given the nature of the issues and the absence of disputed facts relevant to the jurisdictional matter, I have done so.

2. The coverage of the anti-bullying provisions of the FW Act

[6] A significant portion of the FW Act relies upon the definition of national system employee and employer in ss.13 and 14 respectively, and as Ms S.W. points out, in States that have made referrals of certain powers to the Commonwealth, 5 that definition is extended by virtue of ss.30C, 30D, 30M and 30N to include other parties in the relevant State.

[7] Although not critical in this case for reasons outlined below, I note that Western Australia is not a referring State and the extended definition of national system parties does not apply in that State.

[8] Ms S.W. relies upon the objects of the Act, and in particular, the broad statement of intent in s.3 which provides as follows:

“

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 S.W.

Details

AGLC: Ms S.W. [2014] FWC 3288
Case: [2014] FWC 3288
Decision Date: 2 JUNE 2014

CaseChat Overview and Summary

Ms S.W. applied for an order under state legislation to address bullying in the workplace, which she claimed was being conducted by a state government department. The crux of the legal dispute was whether the Fair Work Commission (FWC) had the jurisdiction to hear her application and to issue an order to halt the alleged bullying. The application was brought under the terms of the relevant state legislation, which provided for the FWC to address workplace bullying matters.

The primary legal issue before the court was whether the workplace in question fell within the jurisdictional scope of the FWC under the anti-bullying provisions of the state legislation. The court needed to determine whether the employer was the state government department or some other entity, and if the workplace was constitutionally covered, meaning it was conducted by the Commonwealth or in a Territory, or if it involved a trading or financial corporation. The court considered whether the employer qualified as a corporation under the legislation, and if the workplace was not constitutionally covered, whether any other jurisdictional criteria were met.

The court held that the workplace was not constitutionally covered as it was conducted by a state government department, not the Commonwealth or in a Territory. The employer was not a corporation, as defined under the legislation. Consequently, the court did not have jurisdiction to hear the application or to issue an order to stop the alleged bullying. The application was dismissed on the basis that the FWC could not intervene in this matter.

The court's final orders were to dismiss the application on the basis that the FWC lacked the jurisdiction to hear and determine the matter. The court emphasised that the jurisdictional criteria set out in the legislation were not satisfied, and therefore, no further action could be taken in respect of the application.

Orders