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…

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 Shoshana Amzalak

Details

AGLC: Shoshana Amzalak [2016] FWC 6590
Case: [2016] FWC 6590
Decision Date: 27 SEPTEMBER 2016

CaseChat Overview and Summary

Shoshana Amzalak applied to the Fair Work Commission (FWC) for an order to stop bullying that was occurring at a government school in Queensland. The application hinged on whether the FWC had jurisdiction to hear the claim, given that the employer was a State government department. The court needed to determine if the workplace was conducted by the Commonwealth under the terms of State legislation, if the employer was a national system employer, and if the Commonwealth's powers were referred to it. Additionally, the court had to consider whether the workplace was constitutionally-covered, if it was conducted by the Commonwealth or in a Territory, and if it was a trading or financial corporation.

After examining the relevant legislation and constitutional provisions, the court found that the workplace was not conducted by the Commonwealth, was not in a Territory, and was not a corporation. The court concluded that the FWC did not have jurisdiction to hear the claim, as the workplace did not fall within the scope of the anti-bullying jurisdiction provided by the Fair Work Act 2009 (Cth). The application was dismissed, as the FWC could not make an order to stop the bullying at the State government school.

The court's decision highlights the importance of understanding the scope of the FWC's anti-bullying jurisdiction, particularly in cases involving State government employers. The court's analysis of the relevant legal issues and its application of the constitutional provisions demonstrate the need for careful consideration of jurisdictional questions in such cases. The decision also underscores the need for individuals who experience bullying in State government workplaces to seek redress through alternative means, such as the Queensland Industrial Relations Commission.

No further orders were made by the court in this matter.

Orders