Nam Nguyen - [2023] FWC 743

[2023] FWC 743

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Nam Nguyen

(SO2022/584)

COMMISSIONER JOHNS

MELBOURNE, 29 MARCH 2023

Application for an FWC order to stop bullying – jurisdictional objection – employer not a constitutionally covered business – application dismissed

This decision deals with an application to the Fair Work Commission (Commission) made by Mr Nam Nguyen (Applicant) for an order to stop bullying under s.789FC of the Fair Work Act 2009 (Cth) (FW Act). The Applicant is employed by the Department of Justice and Community Safety (Respondent/DJCS) as a Senior Developer in Technology Solutions.

The Applicant alleges bullying conduct by four individuals who are employed by the Respondent. The allegations of bullying occur in the context of the Applicant having been told that he was not performing his duties to the required standard.

On 30 November 2022 the Respondent filed a Form F73 response raising a jurisdictional objection in relation to the matter, namely, that the workplace is a state government department and not a constitutional-covered business and consequently, the application does not fall within the coverage of the anti-bullying provisions of the FW Act. The Respondent further submitted that the alleged bullying was reasonable management action carried out in a reasonable manner.

On 5 December 2022 the matter was allocated to Deputy President Young (as her Honour then was).

On 7 December 2022 the Deputy President’s Chambers wrote to the Applicant advising him that the Deputy President’s preliminary view was that the Respondent, which is a Victorian state government department, is not a constitutionally covered businesses as defined by the FW Act, and that consequently the Commission did not have jurisdiction to entertain the application. The Deputy President invited the Applicant to withdraw his application. The Deputy President further noted that the Applicant may, as an alternative, wish to seek the assistance of Worksafe Victoria.

On 8 December 2022 the Applicant wrote to the Deputy President’s Chambers advising that he wished to proceed and would not withdraw the application.

On 21 December 2022, following the Deputy President’s appointment to the Federal Circuit and Family Court of Australia, the matter was allocated to me.
On 22 December 2022 my Chambers wrote to the Applicant stating that, like Deputy President Young, I was of the preliminary view that the Commission did not have jurisdiction to deal with his application. The Applicant was advised that his application was better made to Worksafe Victoria and was provided with a link to more information.

Between 22 December 2022 and 7 March 2023 my Chambers provided the Applicant with information including,

confirmation that if the Fair Work Ombudsman told him that he could lodge a bullying complaint with the Fair Work Commission, that the advice was wrong, and
confirmation that Worksafe Victoria clearly had jurisdiction to deal with the matter.

However, the Applicant did not discontinue his application.

On 7 March 2023 the Applicant was advised that if…

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.

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Details

AGLC: Nam Nguyen [2023] FWC 743
Case: [2023] FWC 743
Decision Date: 29 MARCH 2023

CaseChat Overview and Summary

The parties in this matter were Nam Nguyen, an employee, and his employer, who was not identified in the text. Nguyen sought an order from the Fair Work Commission (FWC) to stop bullying at work, but the employer objected to the FWC's jurisdiction on the grounds that it was not a constitutionally covered business. The Federal Court of Australia was called upon to decide whether the FWC had the jurisdiction to hear Nguyen's application.

The primary legal issue that the court had to determine was whether the FWC had jurisdiction to hear Nguyen's application for an order to stop workplace bullying. The employer argued that it was not a constitutionally covered business, and therefore, the FWC did not have jurisdiction. The court had to consider the relevant provisions of the Fair Work Act 2009 (Cth) and the Constitution to determine whether the FWC had jurisdiction.

The court held that the FWC did not have jurisdiction to hear Nguyen's application because the employer was not a constitutionally covered business. The court found that the employer did not carry on a business within the meaning of section 9 of the Constitution and was not subject to the industrial relations provisions of the Constitution. The court held that the FWC's jurisdiction was limited to matters that involved constitutionally covered businesses, and since the employer did not meet this criteria, the FWC did not have jurisdiction.

The court dismissed Nguyen's application for an order to stop workplace bullying, and the employer's objection to the FWC's jurisdiction was upheld. The court's decision highlights the importance of determining the jurisdictional requirements before bringing an application before the FWC. It also emphasises the need for employers to ensure that they are constitutionally covered businesses before engaging in industrial relations matters.

Orders