| [2018] FWCFB 5772 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604––Appeal of decisions
Roads and Maritime Services
v
Leeman
(C2018/3774)
VICE PRESIDENT HATCHER |
|
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…
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- AGLC
- Roads and Maritime Services v Leeman [2018] FWCFB 5772
- Case
- [2018] FWCFB 5772
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Orders
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