Shoshana Amzalak

[2016] FWC 6590

[2016] FWC 6590

FAIR WORK COMMISSION

DECISION

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

Shoshana Amzalak
(AB2016/493)

COMMISSIONER HAMPTON ADELAIDE, 27 SEPTEMBER 2016

Application for an FWC order to stop bullying – State government school – workplace conducted by State government department under the terms of State legislation – identity of the employer – scope of anti-bullying jurisdiction discussed – relevance of national system employer – whether powers referred to Commonwealth – whether workplace is constitutionally-covered – not conducted by the Commonwealth or in a Territory - whether trading or financial corporation – not a corporation – no jurisdiction – application dismissed.

1. Background and case outline

[1] Ms Shoshana Amzalak has made an application under s.789FC of the Fair Work Act 2009 (the FW Act) for an order to stop bullying conduct she alleges has taken, and may in the future take place, within her workplace. At the time of the application, Ms Amzalak was a teacher employed to work at a Victorian Government School; being a secondary college conducted by the Department of Education and Training (Victoria) (the Department) under the Education and Training Reform Act 2006 (Vic) (The Victorian Education Act).

[2] Although it is not ultimately critical in this matter, it is apparent that Ms Amzalak’s employer is, or was, the Secretary of the Department. 1

[3] The Department contends that this application should be dismissed on three principal grounds; namely:

• The school at which Ms Almazak is engaged to work is a Victorian Government School, conducted by the Department on behalf of the State of Victoria, and as such, is not a ‘constitutionally-covered business’ for the purposes of Part 6-4B of the FW Act – the constitutionally-covered issue.



• The State of Victoria has not referred the power to make laws with respect to workplace bullying to the Commonwealth, and since the Respondent is not a constitutional corporation, Part 6-4B of the FW Act has no application to it – the referral of powers issue.



• Ms Almazak’s employment was terminated on 23 August 2016, with the consequence that the Fair Work Commission no longer has the capacity to make an order under s.789FF of the FW Act in relation to the alleged bullying of the Applicant – the future risk issue. 2

[4] Ms Amzalak contends that the Department is her employer and, in effect, that it conducts a constitutionally-covered workplace within the meaning of the FW Act. In general terms, she contends that:

● The Department, through the actions, words and behaviour of the Secondary College concerned (including its Principal and Governing Council) has in numerous ways held itself out to be a corporation;
● The activities of the Department represent relevant trading activities and these comprise well in excess of 15% of its overall activities based upon material provided in a recent Annual Report; and
● The Department is accordingly a trading corporation captured by Part 6-4B of the FW Act. 3

[5] Ms Amzalak also referenced the capacity for the FW Act to extend to State public sector employees given s.30A of that Act. I understand that this raises, at least indirectly, the referral of powers issue outlined by the Department above.

[6] In terms of the future risk issue, Ms Amzalak contends that the Department is a large State entity with multiple employment options and this should be distinguished from a small private sector operation. Further, the applicant has indicated that she was intending to pursue an unfair dismissal application 4 and that it would not be appropriate to dismiss her anti-bullying application in that light.

[7] The parties agreed that I should determine the Department’s objections based upon written submissions and evidence. Given the nature of the issues and the absence of disputed facts directly relevant to the jurisdictional matter, I have done so.

2. The coverage of the anti-bullying provisions of the FW Act

[8] The coverage of this Part of the FW Act was extensively dealt with in Ms SW 5 and later in A.B.6 Without repeating all of that consideration and findings, the following is apposite to this matter.

[9] A significant portion of the FW Act relies upon the definition of “national system employee” and “national system employer” in ss.13 and 14 respectively. In States that have made referrals of certain powers to the Commonwealth,⁷ that definition is extended by virtue of ss.30C, 30D, 30M and 30N to include other parties in the relevant State.

[10] Victoria is a referring State and the extended definition of national system parties applies in that State. I also note in that regard that the reference to “State public sector employee” in s.30A of the FW Act, is relevant to Victoria as a State that referred industrial powers to the Commonwealth prior to 1 July 2009. However, for reasons that will become clear, these concepts are not relevant to the coverage of the anti-bullying provisions of the FW Act.

[11] Section 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.”

[12] 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.

[13] Importantly, the coverage of the anti-bullying provisions in Part 6-4B of the FW Act is not based upon the definition of national system parties, the coverage of the Crown or the referral of powers by most States including Victoria. This is evident from the express terms of the FW Act discussed below.

[14] 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. Section 789FD is in the following terms:

“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.”

[15] 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. Section 789FD(3) requires the Commission to consider the nature, or in some cases – the location, of the legal person conducting the business or undertaking.

[16] In this case, the workplace is a Victorian public school. There is no suggestion of any other (corporate) entity employing in, or more importantly conducting the “business” of, the school.

[17] The workplace in this matter is not located in a Territory⁸ 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 (Cth), in order to be a constitutionally-covered business and fall within the scope of s.789FD, it must be conducted by a constitutional corporation.

[18] In that light, it is not strictly necessary to deal with the referral of powers issue. However as it was, at least indirectly, raised by Ms Amzalak, I would observe as follows.

[19] Division 2A of Part 1-3 of the FW Act deals with the application of the FW Act in States that referred matters before 1 July 2009. Victoria is the only state that is subject to this Division. Section 30H provides that a provision of Division 2A:

“…has effect in relation to a State that is a referring State because of this Division only to the extent that the State’s referral law refers to the Parliament of the Commonwealth matters mentioned in subsection 30B(1) that result in the Parliament of the Commonwealth having sufficient legislative power for the provision so to have effect.”

[20] The most recent iteration of Victoria’s referral law is the Fair Work (Commonwealth Powers) Act 2009 (Vic) (the Victorian Referral Act). Section 4 of the Victorian Referral Act sets out the matters referred to the Commonwealth. Section 4(1)(b) deals with Victoria’s referral to the Commonwealth of matters which can be the subject of amendments to the FW Act (which rely upon and apply in consequence of that referral) and these are described as the “referred subject matters”.

[21] “Referred subject matters” is defined in s.3(1) of the Victorian Referral Act in the following terms:

"referred subject matters" means any of the following—

(a) terms and conditions of employment including any of the following—

(i) minimum terms and conditions of employment (including employment standards and minimum wages);
(ii) terms and conditions of employment contained in instruments (including instruments such as awards, determinations and enterprise‑level agreements);

(iii) bargaining in relation to terms and conditions of employment;
(iv) the effect of transfer of business on terms and conditions of employment;

(b) terms and conditions under which an outworker entity may arrange for work to be performed for the entity (directly or indirectly), if the work is of a kind that is often performed by outworkers;

(c) rights and responsibilities of persons, including employees, employers, independent contractors, outworkers, outworker entities, associations of employees or associations of employers, being rights and responsibilities relating to any of the following—

(i) freedom of association in the context of workplace relations, and related protections;
(ii) protection from discrimination relating to employment;
(iii) termination of employment;
(iv) industrial action;
(v) protection from payment of fees for services related to bargaining;
(vi) sham independent contractor arrangements;
(vii) standing down employees without pay;
(viii) union rights of entry and rights of access to records;

(d) compliance with, and enforcement of, the Commonwealth Fair Work Act ;

(e) the administration of the Commonwealth Fair Work Act;

(f) the application of the Commonwealth Fair Work Act;

(g) matters incidental or ancillary to the operation of the Commonwealth Fair Work Act or of instruments made or given effect under the Commonwealth Fair Work Act —

but does not include any excluded subject matter;”

[22] “Excluded subject matter” is defined in s.3(1) of the Referral Act to mean, relevantly, “a State subject matter”. This, in turn, includes “occupational health and safety”. 9

[23] For present purposes, I consider that the anti-bullying provisions in Part 6-4B of the FW Act would be considered to be an occupational health and safety matter. This arises from the nature of the provisions, the reliance upon various legislative definitions and concepts drawn from work health and safety law, and the definition of being ‘bullied at work’, which requires that the conduct ‘creates a risk to health and safety’. 10 I leave aside for present purposes that some terms and conditions of employment could include elements of occupational health and safety and these may well fall within the scope of the referred matters given the breadth of s.3(1) of the Victorian Referral Act. This would not seem to apply to the anti-bullying provisions, which are not expressed in that form.

[24] It appears from the above that Part 6-4B of the FW Act contains provisions covering a subject matter that was not expressly the subject of Victoria’s referral of powers to the Commonwealth. Part 6-4B was inserted into the FW Act by s.3 and sch.3 of the Fair Work Amendment Act 2013 (Cth) and postdates the enactment of the Victorian Referral Act. The Victorian Parliament has not adopted further legislation to expressly refer further powers to regulate workplace bullying.

[25] Accordingly, it is reasonable to proceed on the basis that Victoria has not referred to the Commonwealth the power to legislate in relation to workplace bullying above and beyond the existing Corporations power 11 directly provided by the Australian Constitution and relied upon by the Commonwealth Parliament in enacting the anti-bullying provisions of the FW Act. In any event, for reasons outlined earlier, Part 6-4B of the FW Act does not rely upon the broader definition of parties and coverage applicable in some other Parts12 of the legislation.

[26] On this basis, and given the other circumstances operating here, this application will fall within the scope of the anti-bullying provisions of the FW Act only if, amongst other requirements, the alleged conduct occurred whilst Ms Amazalak was at work in a constitutional corporation.

3. Is the relevant workplace conducted by a constitutional corporation?

[27] The term “constitutional corporation” is defined in s.12 of the FW Act in the following terms:

“constitutional corporation means a corporation to which paragraph 51(xx) of the Constitution applies.”

[28] The Australian Constitution, in effect, defines “constitutional corporations” as follows:

“Foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth.”¹³

[29] Of these, Ms Amzalak contends that the Department is a trading corporation. In order for that to be correct, the “Department” as the entity (person) conducting the workplace, must be a corporation; that is, an incorporated legal entity of some description.

[30] Based upon all of the material that is before the Commission, 14 I find as follows:

● The Department is the statutory and administrative creation of the State of Victoria, and as such is an emanation of the Crown in right of that State;
● Ms Amzalak’s employer was the Secretary of the Department (the Secretary) on behalf of the Crown in right of the State of Victoria, in accordance with s.2.4.3(1)(a) of the Victorian Education Act;
● The Victorian Education Act deals with the law relating to education and training in Victoria, and relevantly, the establishment and regulation of State government schools. A ‘government school’ is defined in s.1.1.3(1) as “a school established by the Minister and conducted under Part 2.2”;
● Under s.5.2.1(c) of the Victorian Education Act, the Minister for Education and Training (the Minister) has the power to “establish, name, maintain, carry on, modify, merge or close Government schools”. Further, s.2.4.7 enables the Minister, by Order, to specify the eligibility criteria for persons employed in the teaching service and related matters;
● The Secretary also exercises various powers under the Victorian Education Act as a Department Head responsible to the Minister. The Secretary, on behalf of the Crown, employs teachers in the teaching service and has all the rights, powers, authorities and duties of an employer in respect of employees in the teaching service. 15 This includes the power to assign work to employees, issue lawful instructions that must be observed by employees, determine the remunerations and other terms and conditions of employment of individual employees and terminate the employment of employees;16
● Important aspects of the day to day running of Victorian Government schools have been delegated by the Minister to School Principals utilising ss.5.10.4 and 5.10.5 of the Victorian Education Act. This delegation operates subject to the Teaching Service (Employment, Conditions, Salaries, Allowances, Selection and conduct) Order 2009 (Order No 199) (the Order); and
● The Order invests School Principals with an extensive range of powers including for the efficient organisation, management and administration of the school, the allocation of teaching and other duties to employees at the school and ensuring safe working practices in the school. 17 In addition, the Secretary may delegate any of their powers or functions to any person employed in the administration or execution of the Victorian Education Act.18 The exercise of these powers is subject to the control and direction of the Secretary.

[31] Accordingly, the Department, through the Secretary, is the ‘person’ who conducts the business of Victorian Government schools, including the Secondary College at which Ms Amzalak worked.

[32] The Department is part of the State of Victoria, and as such is an emanation of the Crown in right of that State. It is not any kind of incorporated entity. As such, it cannot be a trading (or financial) corporation. Even if its activities include trading, and the manner in which it conducts its affairs has a corporate style, that finding must still follow. 19

[33] Given that the alleged conduct at the heart of this application cannot be considered to be bullying conduct within the meaning of s.789FD of the FW Act, there is no jurisdiction for the Commission to hear and determine this application.

4. Conclusions and orders

[34] Given the above findings it is not necessary that I deal with the future risk issue.

[35] 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

Appearances:

M Rose for Shoshana Amzalak.

S Killackey and later J Ivanovski for the Department of Education and Training (Victoria).

Conference details – by phone:

2016

8 August.

Final written submissions:

2016

26 August

12 and 19 September.

 1   Section 2.4.3(1)(a) of the Victorian Education Act.

 2   Submissions of the Department at par 1.1

 3   Submission on behalf of Ms Almazak.

 4 Ms Amzalak has apparently very recently lodged an unfair dismissal application under s.394 of the FW Act, however, it has not yet been considered by the Commission and I make no findings in that regard.

 5   [2014] FWC 3288.

 6   [2014] FWC 6723.

7 See the Fair Work (State Referral and Consequential and Other Amendments) Act 2009.

⁸ Western Australia is not a Territory as defined in s.2B of the Acts Interpretation Act 1901, which refers to s.122 of the Australian Constitution.

 9 Section 3(1)(d) of the Victorian Referral Act.

 10 Section 789FD(1) of the FW Act.

 11   Section 51 (xx) of the Australian Constitution provides, in effect, that the Commonwealth Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth.

 12 Including for example the application of the unfair dismissal jurisdiction in Part 3-2 of the FW Act.

13 Section 52(xx) of the Australian Constitution.

 14   This includes an affidavit of Mr Tony Bugden, Executive Director of the People Division of the Department and the Department’s Annual report for 2014-15.

 15   Section 2.4.3(1)(a) and 2.4.3(2) of the Victorian Education Act.

 16   Section 2.4.3(3) of the Victorian Education Act.

 17   Clause 11.2.2 of the Order.

 18   Clause 12.1.1 of the Order.

 19   See Ms SW at [25] in terms of the use of an ABN.

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