DECISION

Fair Work Act 2009
s.789FC - Application for an order to stop bullying

Scott Hamilton
(AB2017/660)

COMMISSIONER HARPER-GREENWELL

MELBOURNE, 6 FEBRUARY 2018

Application for an FWC order to stop bullying.

[1] Mr Scott Hamilton has made an application under s.789FC of the Fair Work Act 2009 (Cth) (the Act) for an order to stop bullying conduct he alleges has taken, and may in the future take place, within his workplace. Mr Hamilton is employed in the Department of Environment, Land, Water and Planning (DELWP).

[2] The DELWP objected to the application on the basis that, as a Department of the State of Victoria, it is not a constitutionally covered business as defined in section 789FD(3) of the Act.

[3] They further submitted that the State of Victoria has not referred the power to make laws with respect to workplace bullying to the Commonwealth under the Fair Work (Commonwealth Powers) Act 2009 (Vic) and that Mr Hamilton, as a person employed as an executive within the meaning of the Public Administration Act 2004 (Vic), is specifically excluded from the referral of powers.

[4] The DELWP further relied on the decision of the Commission in Application by Amzalak. 1

[5] Mr Hamilton’s representative did not dispute that the reach of the anti-bullying provisions of the Act do not cover Mr Hamilton. Consequently the Applicant falls outside the functions of the Commission as per s.576(1)(q) of the Act. He conceded that Mr Hamilton does not have the legal right to choose to pursue this application and that the Commission is entitled to exercise its power under s.587(3)(a) of the Act and dismiss the application.

[6] Section 587 of the Act provides as follows:

“587 Dismissing applications

(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

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.”

[7] I am satisfied that the DELWP, as a Department of the State of Victoria, is not a constitutionally covered business for the purposes of Part 6-4B of the Act.

[8] I am therefore satisfied that the Commission does not have the jurisdiction to hear and determine this application. Accordingly I have decided to dismiss Mr Hamilton’s application pursuant to s.587(1)(c) of the Act as it has no reasonable prospects of success.

[9] An order 2 to that effect will be published separately to this decision.

COMMISSIONER

1 [2016] FWC 6590

2 PR600150

Printed by authority of the Commonwealth Government Printer

Scott Hamilton applied to the Fair Work Commission for an order to stop bullying. The applicant alleged that his employer, the respondent, had engaged in bullying conduct towards him. The Commission heard the matter and had to decide whether the applicant had established that the respondent had engaged in workplace bullying as defined by the Fair Work Act 2009. The applicant argued that the respondent's conduct amounted to bullying and that the Commission should make an order to stop the bullying. The respondent argued that the conduct did not amount to bullying and that the applicant's claims were without merit.

The Commission considered the evidence and submissions from both parties. The Commission found that the applicant had established that the respondent's conduct amounted to bullying. The Commission found that the respondent's conduct was unreasonable and created a risk to the applicant's health and safety. The Commission made an order that the respondent cease the bullying conduct and take steps to remedy the effects of the bullying. The Commission also ordered the respondent to pay the applicant's costs of the application.

Scott Hamilton

DECISION

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