DECISION

Fair Work Act 2009
s.604––Appeal of decisions

Roads and Maritime Services
v
Leeman
(C2018/3774)

VICE PRESIDENT HATCHER
DEPUTY PRESIDENT COLMAN
COMMISSIONER SPENCER

SYDNEY, 18 SEPTEMBER 2018

Introduction and statutory framework

[1] Roads and Maritime Services (RMS), a corporation established by s 46 of the Transport Administration Act 1988 (NSW), has lodged an appeal for which permission to appeal is required against a decision issued by Senior Deputy President Hamberger on 19 June 2018 1 (Decision). The Decision arose out of an application made by Ms Victoria Leeman pursuant to s 789FC of the Fair Work Act 2009 (FW Act)for an order to stop bullying in relation to her work at RMS. RMS had contended that the Commission had no jurisdiction to deal with the application because Ms Leeman was not “at work” in RMS, and in any event RMS was not a “constitutionally covered business”. In the Decision the Senior Deputy President rejected RMS’s jurisdictional objection, and found firstly that Ms Leeman was in fact at work at RMS and, secondly, that RMS was a constitutionally covered business because it was a trading corporation. RMS’s appeal concerns the second of these determinations.

[2] The statutory framework applicable to the matter before the Senior Deputy President was as follows. Pursuant to s 789FC of the FW Act, a “worker who reasonably believes that he or she has been bullied at work” may apply to the Commission for an order under s 789FF. Section 789FF authorises the Commission, upon application and if it is satisfied that the worker has been “bullied at work” by an individual or group of individuals and there is a risk that the worker will continue to be bullied at work by the individual or group, to make any order it considers appropriate (other than an order for the payment of a pecuniary amount) to prevent the worker from being bullied at work.

[3] Section 789FD(1) defines when a worker is “bullied at work” in the following terms:

(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.

[4] The expression “constitutionally-covered business” is defined by s 789FD(3). If a person is a “constitutional corporation” which conducts a business or undertaking, then the person falls within the scope of the definition. The expression “constitutional corporation” is defined in s 12 to mean “a corporation to which paragraph 51(xx) of the Constitution applies”. The corporations to which s 51(xx) of the Constitution refers are “foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth”.

The Decision

[5] It was not in dispute…

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 Roads and Maritime Services v Leeman

Details

AGLC: Roads and Maritime Services v Leeman [2018] FWCFB 5772
Case: [2018] FWCFB 5772
Decision Date: 18 SEPTEMBER 2018

CaseChat Overview and Summary

Roads and Maritime Services (RMS), a corporation established by s 46 of the Transport Administration Act 1988 (NSW), sought permission to appeal a decision by Senior Deputy President Hamberger that RMS was a “constitutionally covered business” within the meaning of s 789FD of the Fair Work Act 2009 (FW Act). RMS contended that the Senior Deputy President erred in concluding that it was a trading corporation, and thus a constitutionally covered business. RMS did not challenge the Senior Deputy President’s finding that it derived almost $232 million in revenue from trading activities, which constituted 3.53% of its total revenue. It submitted that the Senior Deputy President erred by not taking into account RMS’s public purposes and functions, its relationship to the State of New South Wales, and the fact that its trading activities were merely incidental to its core functions. The Fair Work Commission found that the Senior Deputy President did not err in concluding that RMS was a trading corporation. The Senior Deputy President had taken into account both the absolute and relative volume of RMS’s trading activities, and concluded that the trading revenue considered in a relative sense could not be described as trivial, insignificant, marginal, minor or incidental. It was not necessary that RMS’s sole or predominant character be that of a trading corporation; a trading corporation may equally be able to be characterised as being also a corporation of another type. It was also irrelevant that RMS’s functions were predominantly for the public good and not commercially orientated. The statutory functions of RMS included the conduct of trading activities, and it was authorised to engage in trading activities in their own right. For these reasons, the appeal was dismissed.

Orders