Application for an FWC order to stop bullying – statutory legal aid body – whether employer voluntarily submitted to jurisdiction given inclusion of policy within enterprise agreement – coverage of stop bullying laws considered – applicant must be working in a constitutionally-covered workplace – whether trading corporation – approach considered – major activities not trading – some minor activities may be trading in nature but are peripheral – not trading corporation – no jurisdiction – application dismissed.

1. Background and case outline

[1] Ms Suzanne Robertson 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. Ms Robertson is employed as an Assessment Officer at Victorian Legal Aid (VLA).

[2] VLA is a statutory authority established under section 3(1) of the Legal Aid Act 1978 (Vic) (the LA Act)which provides and funds legal services to the Victorian community. VLA employs in the order of 880 employees spread across its Melbourne head office and 14 regional locations in Victoria.

[3] The application was initially subject to mediation and whilst constructive discussions were held, the application was not resolved to the point that it could be finalised. Subsequently, the application was subject to a preliminary conference where appropriate interim arrangements and the issues arising from the matter were comprehensively considered.

[4] Although some interim arrangements are in place within the workplace to manage the interactions between relevant staff, the stop-bullying application has not been resolved and it has become necessary to deal with a jurisdictional objection raised by VLA. 1

[5] Subject to an alternative proposition advanced by the applicant, it is common ground that in order for the application to fall within this particular jurisdiction as created by the FW Act, Ms Robertson must at the relevant times have been at work in a constitutionally-covered business. This arises from s.789FD of the FW Act and I will return to the detail of that provision shortly. It is also common ground that given the definition of a constitutionally-covered business and the location of the workplace, VLA will fit within that definition only if it is found to be a constitutional corporation; 2 being in this case a trading corporation.

[6] VLA contends that it is not a constitutional corporation, the Commission does not have jurisdiction to determine the merits of the application, and that the application should be dismissed. Ms Robertson contends that VLA is a trading corporation and has, in any event, voluntarily submitted to the jurisdiction of the Commission.

[7] VLA is corporate in nature by virtue of s.5 of the LA Act. There is no contention that it is a foreign or financial corporation. As a result, this decision deals with whether…

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 Suzanne Robertson

Details

AGLC: Suzanne Robertson [2018] FWC 6387
Case: [2018] FWC 6387
Decision Date: 16 NOVEMBER 2018

CaseChat Overview and Summary

Suzanne Robertson brought an application in the Fair Work Commission (FWC) for an order to stop bullying against her employer, the Queensland Legal Aid Commission. The Commission argued that the FWC did not have jurisdiction to hear the application due to the nature of its activities. The central issue before the court was whether the Queensland Legal Aid Commission was a trading corporation, thereby bringing it within the constitutional definition of corporations over which the Commonwealth has legislative power. This was crucial as the FWC’s jurisdiction to hear such matters stems from the Commonwealth’s legislative powers under the Constitution.

The court considered the nature of the Commission’s activities, including whether they were trading in nature. It examined both the major and minor activities of the Commission, finding that the major activities were not trading in nature. While some minor activities may have had a trading aspect, these were deemed peripheral to the overall function of the Commission. The court applied a test to determine if the Commission was a trading corporation, concluding that the activities in question were not of a trading character. Consequently, the court held that the Commission was not a trading corporation within the meaning of section 51(xx) of the Constitution, and therefore, it did not fall within the FWC’s jurisdiction. The application was dismissed.

The reasoning of the court hinged on the nature of the Commission’s activities and the application of the trading corporation test. The court found that the Commission’s activities were primarily non-trading, and even the minor trading activities were not sufficient to confer Commonwealth jurisdiction. This decision underscores the importance of the constitutional framework in determining jurisdictional boundaries of the FWC. The dismissal of the application highlights the stringent criteria required to establish the FWC's jurisdiction over workplace disputes involving statutory bodies.

Orders