DECISION

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

Victoria Leeman
(AB2018/3)

SENIOR DEPUTY PRESIDENT HAMBERGER

SYDNEY, 19 JUNE 2018

Application for an order to stop bullying in relation to work in Roads and Maritime Services – jurisdictional objections – whether the applicant was ‘at work in’ Roads and Maritime Services – whether Roads and Maritime Services is a constitutionally-covered business – whether Roads and Maritime Services is a trading corporation – whether Roads and Maritime Services engages in ‘substantial’ or ‘significant’ trading activities – jurisdictional objection dismissed.

[1] Ms Victoria Leeman (the applicant) has applied under s.789FC of the Fair Work Act 2009 (Cth) (the FW Act) for an order to stop bullying in relation to her work in Roads and Maritime Services (RMS).

[2] The applicant’s employer (the employer) filed a response to the application on 19 January 2018. In its response, the employer gave its legal name as:

‘Secretary of the Department of Transport, exercising on behalf of the Government of New South Wales, the employer functions of the Government in relation to the staff employed in the Transport Service (Roads and Maritime Services).’

[3] The employer denied that any bullying behaviour had taken place. However, it also raised two jurisdictional objections to this application, submitting that:

• the applicant was never ‘at work in’ RMS; and

• even if she were, RMS was not a constitutionally-covered business for the purposes of s.789FD of the FW Act.

[4] The employer indicated on 9 February 2018 that it wished to participate in a conciliation conference to see if the matters raised by the applicant could be resolved by discussion. Accordingly, I held a conciliation conference on 19 February 2018. Unfortunately, this did not resolve the matter, and the applicant indicated on 12 March 2018 that she wished to proceed with her application. The employer confirmed that it wished to press its jurisdictional objection, and the parties were directed to file outlines of submissions and any relevant evidentiary material. The matter was listed for jurisdictional hearing on 15 May 2018.

[5] The applicant requested to be excused from attending the jurisdictional hearing. However, she sent an email on 1 May 2018 which said, inter alia:

‘I am of the understanding that I am employed by RMS which is supported by the following:

My Letter of Offer refers to “a full time ongoing basis with Roads and Maritime Services” and;

My role is covered by the Roads and Maritime Services Consolidated Salaried Award 2014”

My work email address is “victoria.leeman@rms.nsw.gov.au” (not @transport)

My position description refers to RMS being a separate agency as “one of four operating agencies in the Transport Cluster”

My corporate purchasing card is in the name of NSW RMS VICTORIA LEEMAN

I disagree that I am employed by Transport NSW and that RMS is not a trading corporation.

A portion of RMS revenue is derived from trading activities ie “own source funds”.’

The…

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 Victoria Leeman

Details

AGLC: Victoria Leeman [2018] FWC 3584
Case: [2018] FWC 3584
Decision Date: 19 JUNE 2018

CaseChat Overview and Summary

Victoria Leeman, an employee of Roads and Maritime Services (RMS), applied to the Federal Circuit Court for an order to stop workplace bullying. The application was made under the Fair Work Act 2009 (Cth). The dispute involved RMS's jurisdictional standing, whether the applicant was working for RMS, and whether RMS was a constitutionally-covered business, a trading corporation, or engaged in substantial trading activities.

The primary legal issue was whether the court had jurisdiction over RMS. RMS argued that it was not a trading corporation, nor did it engage in substantial trading activities. RMS also contended that Leeman was not working for RMS when the bullying occurred. Leeman argued that RMS was a trading corporation and that the court had jurisdiction over RMS.

The court found that RMS was a trading corporation and engaged in substantial trading activities. It also determined that Leeman was working for RMS when the bullying occurred. The court dismissed RMS's jurisdictional objections, finding that it had jurisdiction over RMS and could proceed with the application for an order to stop workplace bullying.

The court's decision was that RMS was a trading corporation and engaged in substantial trading activities. The court found that it had jurisdiction over RMS, and the application to stop workplace bullying could proceed. The court ordered that the application would be heard on its merits.

Orders