Nam Nguyen
[2023] FWC 743
•29 MARCH 2023
| [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 he did not file a Notice of Discontinuance by 5 pm on 10 March 2023, the matter would be listed for a jurisdictional hearing on 24 March 2023. The parties were given until 17 March 2023 to file any submissions in relation to the jurisdiction of the Commission.
On 22 March 2023 my Chambers wrote to the parties advising them that as no further material had been filed by either party, the matter would be decided on the papers.
Jurisdiction
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. Sections 789FF and 789FD provide as follows:
“789FF FWC may make orders to stop bullying
(1) If:
(a) a worker has made an application under section 789FC; and
(b) the FWC is satisfied that:
(i) the worker has been bullied at work by an individual or a group of individuals; and
(ii) there is a risk that the worker will continue to be bullied at work by the individual or group;
then the FWC may make any order it considers appropriate (other than an order requiring payment of a pecuniary amount) to prevent the worker from being bullied at work by the individual or group…”
“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.”
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.
In this case, the workplace is a Victorian state government department. There is no suggestion of any other (corporate) entity employing in, or more importantly conducting the “business” of the Respondent.
The workplace in this matter is not located in a Territory 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
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.”
The Constitution, in effect, defines “constitutional corporations” as follows:
“Foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth.”[1]
The workplace is conducted by DJCS and the employer of the Applicant is the Crown in the right of the State of Victoria. Even if DJCS is a separate legal entity from the State (and I make no finding in that regard), DJCS and/or the State of Victoria are not corporations within the meaning of the Constitution.[2] The absence of a corporate entity means that it cannot be a constitutional corporation.
Accordingly, the workplace concerned is not a constitutionally-covered workplace.
For completeness, I also note that s.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.”
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 FW 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 FW Act, a different basis for the coverage is stated.
Importantly, the coverage of the anti-bullying provisions of the FW Act is not based upon the definition of national system parties, and does not rely upon the potential coverage of the Crown or the referral of powers by most States, which includes Victoria. This is evident from the express terms of the FW Act discussed above, and as a result, s.37 also does not provide a basis for the Applicant’s application to be dealt with under the immediate provisions.
Conclusion
For reasons outlined above, the alleged conduct would not fall within the scope of the anti-bullying provisions in Part 6-4B of the FW Act. There is no jurisdiction for the Commission to deal with this present matter. As a result, this application must be dismissed and I so order.
COMMISSIONER
[1] Australian Constitution s.52(i).
[2] See also S.W. [2014] FWC 3288.
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