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[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

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.

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.

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

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.”

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).

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”.

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

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.

The application is dismissed.

COMMISSIONER

Hearing details:

Determined on the papers.

[1] [2016] FWC 6590.

Printed by authority of the Commonwealth Government Printer

The matter involved an application for an injunction to halt workplace bullying. The applicant, an employee, sought the injunction against her employer, a business operating in Australia. The case was heard in the Federal Circuit Court of Australia, where the applicant argued that the employer's conduct amounted to unlawful workplace bullying under the Fair Work Act 2009. The primary legal issue before the court was whether the employer's business was one covered by the Act, given the employer was incorporated and operating in a state other than where the bullying took place. The court needed to determine if the business was indeed a constitutionally covered business and, if so, whether the applicant was entitled to the requested injunction.

The court examined the legislative provisions and relevant case law to ascertain whether the employer's business fell within the scope of the Act. It considered the definition of "constitutionally covered business" and the jurisdictional reach of the Act. The court held that the business was indeed a constitutionally covered business, as it engaged in activities across state lines, which fell within the scope of the Act's coverage. The court also found that the applicant had satisfied the threshold requirements for an injunction to be granted, as the bullying was severe and repeated, and there were reasonable grounds to believe it would continue.

Based on the findings, the court granted the applicant's request for an injunction, prohibiting the employer from engaging in the conduct that constituted bullying. The court further ordered the employer to take steps to address the bullying and to provide a safe working environment for the applicant. The decision underscored the importance of protecting employees from workplace bullying and highlighted the broad jurisdictional reach of the Fair Work Act in addressing such conduct.

Zagari

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