Robertson
[2024] FWC 2317
•30 AUGUST 2024
| [2024] FWC 2317 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
Robertson
(AB2024/387)
| COMMISSIONER MCKINNON | SYDNEY, 30 AUGUST 2024 |
Application for an order to stop bullying at work – whether a worker – whether at work in a constitutionally covered business – taxi industry
Ms Debra Estelle Robertson is an ‘operator’ and taxi driver in the Bundaberg region of Queensland. On 31 May 2024, Ms Robertson applied for orders to stop bullying at work under s.789FC of the Fair Work Act 2009 (the Fair Work Act). The application is made in relation to two individuals who work for A2B Australia Ltd (A2B) and/or Yellow Cabs Australia Pty Ltd trading as 13cabs (Yellow Cabs). A2B and Yellow Cabs object to the application on the basis that Ms Robertson is not a worker in their business(es).
Under s.789FC of the Fair Work Act, a worker who reasonably believes they have been bullied at work may apply to the Commission for an order to stop bullying. “Worker” for this purpose has the same meaning as in s.7 of the Work Health and Safety Act 2011 (Cth) (WHS Act).
There are two questions for determination. The first is whether Ms Robertson is a worker for the purposes of s.789FC. For the reasons that follow, I find that Ms Robertson is a worker for the purposes of the Fair Work Act such that she has standing to bring the application. The second question is whether the alleged bullying at work occurred while Ms Robertson was at work “in a constitutionally covered business”. For the reasons that follow, the answer to this question is no.
As Ms Robertson was not at work in a constitutionally covered business when the alleged bullying occurred, the Commission cannot find that she was “bullied at work” within the meaning of s.789FD of the Fair Work Act. The application will instead be dismissed.
Ms Robertson is a “worker”
Section 7 of the WHS Act contains the definition of “worker”. Relevantly, it provides as follows:
“(1) A person is a worker if the person carries out work in any capacity for a person conducting a business or undertaking, including work as:
(a) an employee; or
(b) a contractor or subcontractor; or
(c) an employee of a contractor or subcontractor; or(d)an employee of a labour hire company who has been assigned to work in the person’s business or undertaking; or
(e) an outworker; or
(f) an apprentice or trainee; or
(g) a student gaining work experience; or
(h) a volunteer; or(i) a person of a prescribed class.
(2) ...
(3)The person conducting the business or undertaking is also a worker if the person is an individual who carries out work in that business or undertaking.”
Section 5 of the WHS Act defines when a “person conducts a business or undertaking”.
“(1) For the purposes of this Act, a person conducts a business or undertaking:
(a) whether the person conducts the business or undertaking alone or with others; and
(b) whether or not the business or undertaking is conducted for profit or gain.
(2)A business or undertaking conducted by a person includes a business or undertaking conducted by a partnership or an unincorporated association.
(3)If a business or undertaking is conducted by a partnership (other than an incorporated partnership), a reference in this Act to a person conducting the business or undertaking is to be read as a reference to each partner in the partnership.
(4)A person does not conduct a business or undertaking to the extent that the person is engaged solely as a worker in, or as an officer of, that business or undertaking.
(5)An elected member of a local authority does not in that capacity conduct a business or undertaking.
(6)The regulations may specify the circumstances in which a person may be taken not to be a person who conducts a business or undertaking for the purposes of this Act or any provision of this Act.
(7)A volunteer association does not conduct a business or undertaking for the purposes of this Act.
(8)In this section, volunteer association means a group of volunteers working together for 1 or more community purposes where none of the volunteers, whether alone or jointly with any other volunteers, employs any person to carry out work for the volunteer association.”
There are no regulations excluding persons in the commercial taxi industry from the meaning of “worker” or a person who “conducts a business or undertaking”.
Ms Robertson carries out work for and on behalf of Mr Brendan James Casey. Mr Casey owns two taxi vehicles and two taxi licences. The taxis are operated on the A2B and/or Yellow Cabs network under a subscription agreement between those entities and Mr Casey. Mr Casey has delegated the day-to-day work of operator to Ms Robertson, who carries out the work on his behalf in return for a percentage of his income. She also works as a taxi driver in Mr Casey’s vehicle(s).
I find that Ms Robertson is a worker for the purposes of the Fair Work Act. She carries out work for Mr Casey, who is a person conducting the business of operating a taxi service (notwithstanding that the day-to-day work of this business is carried out by Ms Robertson on his behalf).
Ms Robertson does not work in a constitutionally covered business
Section 789FD of the Fair Work Act provides as follows:
“(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.”
Ms Robertson submits that she works in the business of A2B or Yellow Cabs and accordingly works in a constitutionally covered business. A2B and Yellow Cabs are each corporate entities within the meaning of a “person” for the purposes of the WHS Act, and each conducts a business or undertaking. It is likely that they are constitutional corporations of the trading kind, although it is not necessary to reach a firm conclusion on the matter.
The question is whether Ms Robertson carries out work, in any capacity, for either of these businesses. The answer must be no.
As noted above, the work performed by Ms Robertson is carried out for Mr Casey. It cannot simultaneously be carried out for A2B and/or Yellow Cabs. Payment for the work is derived from taxi fares paid by customers of Mr Casey’s taxi service. Unless taxi drivers are paid in cash, fares are collected by A2B and/or Yellow Cabs and then distributed to Mr Casey’s business periodically. Although A2B and/or Yellow Cabs may benefit indirectly from Ms Robertson’s work through the payment of subscription fees it receives from Mr Casey’s business and from having additional taxi services connected to its network in the Bundaberg region, this is not sufficient to demonstrate that the work performed by Ms Robertson is performed for A2B and/or Yellow Cabs as opposed to Mr Casey.
Mr Casey is a person who conducts a business or undertaking within the meaning of the WHS Act, but he does not meet the description of a constitutionally covered business (s.789FD(3) above). Mr Casey is not the Commonwealth or a Commonwealth authority. The taxi service is operated on behalf of Mr Casey in his individual capacity rather than in any capacity as a body corporate (whether corporate sole or through a different kind of corporate entity, and whether incorporated in a Territory or otherwise). His business is conducted principally in Queensland, which is neither a Territory or Commonwealth place. He can only be a constitutional corporation of the foreign, trading or financial kind if he is, or is acting through, a corporate entity. But Mr Casey is a sole trader, and he trades in his capacity as an individual.
I find that Mr Casey’s business is not a constitutionally covered business.
Conclusion
Ms Robertson is a worker for the purposes of s.789FC of the Fair Work Act and has standing to bring the application. However, the alleged bullying at work did not occur while Ms Robertson was at work in a constitutionally covered business. The alleged bullying behaviour cannot result in a finding that Ms Robertson has been “bullied at work” as defined in s.789FD.
Section 587 of the Fair Work Act provides as follows:
“(1)Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:
(a) the application is not made in accordance with this Act; or
(b) the application is frivolous or vexatious; or
(c) the application has no reasonable prospects of success.”
In the circumstances, the appropriate course is to dismiss the application because it has no reasonable prospects of success.
Order
The application is dismissed under s.587(1)(c) of the Fair Work Act.
COMMISSIONER
Appearances:
D Robertson on her own behalf.
C Maniacup on behalf of A2B and Yellow Cabs.
R Poissant and K Fouracre on their own behalf.
Hearing details:
2024.
Sydney (by video):
July 11.
Final written submissions:
August 5.
Printed by authority of the Commonwealth Government Printer
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