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:

“3 Object of this Act

The object of this Act is to provide a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians by:

(a) providing workplace relations laws that are fair to working Australians, are flexible for businesses, promote productivity and economic growth for Australia’s future economic prosperity and take into account Australia’s international labour obligations; and

... ... ...”

[9] Section 578(a) of the FW Act directs attention to the statutory objects and s.15AA of the Acts Interpretation Act 1901 requires, in effect, that a construction that would promote the purpose or object of the FW Act is to be preferred to one that would not promote that purpose or object. The purpose or object of the FW Act is to be taken into account even if the meaning of a provision is clear. When the purpose or object is brought into account an alternative interpretation may become apparent. If one interpretation does not promote the object or purpose of the FW Act, and another does, the latter interpretation is to be preferred. Section 15AA requires the Commission to construe the FW Act, not to rewrite it, in the light of its purpose. 6

[10] In this case, the inclusion of broad statements within s.3, including reference to “all Australians”, does not of itself mean that all of the provisions of the FW Act extend to all Australians.

[11] I also note that the reference to “State public sector employee” in s.30A of the FW Act, as relied upon by Ms S.W., is only relevant to States that referred industrial powers to the Commonwealth prior to 1 July 2009 (Victoria).

[12] Section 37 of the FW Act provides as follows:

“37 Act binds Crown

(1) This Act binds the Crown in each of its capacities.

(2) However, this Act does not make the Crown liable to be prosecuted for an offence.”

[13] This provision establishes the capacity of the FW Act to bind and apply to the Crown in its various capacities. Whether the various provisions of the Act apply to those various capacities depends upon how the coverage of those provisions is expressed. This follows because various parts of the FW Act are specified to apply to different parties. This includes, in most cases, reference to national system parties, whereas in other parts of the Act, a different basis for the coverage is stated.

[14] Importantly, the coverage of the anti-bullying provisions of the FW Act is not based upon the definition of national system parties, the coverage of the Crown or the referral of powers by most States. This is evident from the express terms of the Act discussed below.

[15] In order for the anti-bullying jurisdiction to be engaged, the Commission must find that a worker has been bullied at work within the meaning of the FW Act. Section 789FD 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.”

[16] The initial focus of the definition is the workplace where the applicant is at work when the alleged unreasonable conduct takes place. That is, the conduct must take place whilst the worker is at work in a constitutionally-covered business.

[17] In this case, the workplace is a Western Australian public school. There is no suggestion of any other (corporate) entity employing in, or more importantly conducting the “business” of, the school. In that regard, and for reasons that will become clear, it is not necessary in this case for me to determine whether Ms S.W.’s employer is the Department or the State of Western Australia.

[18] The workplace in this matter is not located in a Territory 7 and there is no suggestion that it is conducted by the Commonwealth or a Commonwealth authority. Assuming for present purposes that the workplace is a business or undertaking within the meaning of the Work Health and Safety Act 2011, in order to be a constitutionally-covered business and fall within the scope of s.789FD, it must be conducted by a constitutional corporation.

3. Is the workplace conducted by a constitutional corporation?

[19] The term “constitutional corporation” is defined in s.12 of the Act in the following terms:

“constitutional corporation means a corporation to which paragraph 51(xx) of the Constitution applies.”

[20] The Constitution, in effect, defines “constitutional corporations” as follows:

“Foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth.” 8

[21] Ms S.W. contends that the Department has an Australian Business Number (ABN) and I infer, that she would then suggest that it is therefore a corporation.

[22] The School Education Act establishes the Department under s.228 in the following terms:

“228 Department of Public Service for government schools

There is to be a department of the Public Service with a function of principally assisting the Minister in the administration of this Act, other than in relation to —

(a) Part 4; and

(b) the application of any other provision of this Act to students enrolled at non-government schools.” 9

[23] Section 236 of the School Education Act vests employment powers in the Chief Executive Officer of the Department and ss.236(6) provides as follows:

“(6) For the avoidance of doubt it is declared that members of the teaching staff, other officers and wages staff are employed for and on behalf of the Crown.” 10

[24] This and other provisions of that Act support the view that even if the Department is a separate legal entity from the State (which I would not be inclined to find), the Department and/or the State of Western Australia are not corporations. The absence of a corporate entity means that it cannot be a constitutional corporation.

[25] I note that the fact that an ABN is used by the Department cannot by itself mean that it is a corporation. Amongst other reasons, non-corporations can apply and be granted an ABN. 11

[26] Accordingly, the workplace concerned is not a constitutionally-covered workplace.

4. Conclusions

[27] As a result of the above findings, even if bullying behaviour occurred at the particular Western Australian public school concerned, it could not lead to a finding that the applicant had been bullied at work within the meaning of the FW Act.

[28] There is accordingly, no jurisdiction to determine this particular application.

[29] I note that Ms S.W. may have the right to bring a complaint under Western Australian legislation applying to the public sector in that State. This is however, entirely a matter for her.

[30] Ms S.W. indicted 12 that she wished to discontinue the matter if a finding of this nature was made. Whilst that course of action is entirely reasonable, I am obliged to formally dismiss the application given my findings, and will do so, if the application is not expeditiously discontinued by the applicant.

Written submissions:

The Western Australian Department of Education/The Crown in the Right of the State of Western Australia:

April 29 and 15 May 2014.

Ms SW:

14 May 2014.

 1 S.37 of the FW Act.

 2 S.30A of the FW Act.

 3 S.30D of the FW Act.

 4 S.3 of the FW Act.

 5   See the Fair Work (State Referral and Consequential and Other Amendments) Act 2009.

 6   Mills v Meeking (1990) 169 CLR 214 at 235 per Dawson J; R v L (1994) 49 FCR 534 at 538.

 7 Western Australia is not a Territory as defined in s.2B of the Acts Interpretation Act 1901, which refers to s.122 of the Australian Constitution.

 8   Australian Constitution s.52(i).

 9   The exclusions to the role of the Department both relate to non-government schools.

 10   See also Wynyard Investments Pty Ltd v Commissioner for Railways (NSW) (1955) 93 CLR 376 at 393.

 11   An ABN is, in general terms, an identifier of a business for taxation and other purposes but is available to individuals and other forms of “business”. This includes State Government entities.

 12   Ms S.W. written submissions, 14 May 2014.

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