Zagari

[2023] FWC 3371

[2023] FWC 3371

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.789FC - Application for an order to stop bullying

Zagari

(AB2023/423)

COMMISSIONER MCKINNON SYDNEY, 20 DECEMBER 2023

Application for an order to stop bullying at work – whether a constitutionally covered business

1. On 11 September 2023, Mrs Maria Zagari applied for orders to stop bullying at work under s.789FC of the Fair Work Act 2009 (the Act). The Applicant is employed to work in secondary schools operated by the State of Victoria (Department of Education) (the State). The application alleges bullying at work while Mrs Zagari was at work in two of those schools.

1. Section 789FD of the Act deals with when a worker is bullied at work. A worker is bullied at work if, while they are at work in a constitutionally-covered business, one or more individuals repeatedly behave unreasonably towards them and the behaviour creates a risk to health and safety. Accordingly, the Commission can only deal with the application if the alleged bullying occurred while Mrs Zagari was at work in a “constitutionally‑covered business” for the purposes of s.789FD(3) of the Act.

1. For the reasons that follow, neither the schools, nor the State, are constitutionally‑covered businesses and the Commission does not have jurisdiction to deal with the application.

Consideration

1. Section 789FD of the Fair Work Act provides as follows:

“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.”

1. The schools in which Mrs Zagari work are Victorian Government schools established under section 2.2.1 of the Education and Training and Reform Act 2006 (Vic). The business or undertaking of each school is conducted principally in Victoria, which is neither a Territory nor a Commonwealth place for the purposes of s.789FD(3)(b). The schools are not body corporates incorporated in a Territory (s.789FD(3)(a)(iv)) or Commonwealth authorities (s.789FD(3)(a)(iii)). The State is not the Commonwealth, including for the purposes of s.789FD(3)(a)(ii).

1. That leaves the question of whether the schools are constitutional corporations for the purposes of s.789FD(3)(a)(i). “Constitutional corporation” is defined in s. 12 of the Act as “a corporation to which paragraph 51(xx) of the Constitution applies”. Paragraph 51(xx) of the Constitution relevantly confers power on the Australian Parliament “to make laws… with respect to… foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth”. This can be distinguished from the Commonwealth’s power to make laws with respect to matters such as trade and commerce with other countries, and “among the States”.

1. As Hampton C observed in the case of Shoshana Amzalak[1], the Department is the statutory and administrative creation of the State. The Department, and the schools it operates, are emanations of the Crown in right of that State. The State is not a corporation, either of the foreign, financial or trading kind, and nor are its schools. The schools are not constitutional corporations.

Conclusion

1. The application alleges bullying at work while Mrs Zagari was at work in schools operated by the State of Victoria. However, the schools do not meet the description of a “constitutionally-covered business” for the purposes of the Act. Mrs Zagari cannot have been “bullied at work” for the purposes of s.789FD(1) of the Act because the alleged bullying did not occur while she was at work in a constitutionally‑covered business.

1. The application is dismissed.

COMMISSIONER

Hearing details:

Determined on the papers.

[1] [2016] FWC 6590.

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