DECISION

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

A.B.
(AB2014/1353)

Application for an FWC order to stop bullying - workplace conducted by State government department under the terms of State legislation - scope of anti-bullying jurisdiction discussed - 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

[1] On 28 July 2014, A.B. made an application for an order to stop bullying under s.789FC of the Fair Work Act 2009 (the FW Act).

[2] The application cited the Department of Education in New South Wales (the NSW Department) as his employer. It is evident from the application that A.B. is engaged to work at a school conducted by the NSW Department and the alleged bullying conduct is said to have occurred in that workplace.

[3] The NSW Department has raised a jurisdictional objection in relation to the matter; namely, that the workplace is not a constitutional-covered business and as a result, the application does not fall within the coverage of the anti-bullying provisions of the FW Act.

[4] The application was listed for a preliminary conference by telephone on 3 September 2014. Neither A.B., nor anyone acting on his behalf, participated in the conference or otherwise contacted the Commission.

[5] The NSW Department was represented in the conference by Mr Miles, its Chief Legal Officer, and pressed its jurisdictional objection. It did however recognise that A.B. should be afforded an additional opportunity to be heard on the issue.

[6] Following the conference, the Commission issued directions requiring A.B. to confirm whether he intended to proceed with the application, explain his non-participation in the conference and provide a response to the jurisdictional issue.

[7] On 6 September 2014, A.B contacted the Commission in response to the directions and provided an explanation for his non-participation in the conference and confirmed that he wanted to continue with the application. However, A.B. did not provide any submissions in relation to whether the Commission has jurisdiction to deal with the matter given the jurisdictional objections raised by the NSW Department.

[8] Subsequently, on 10 September 2014 the Commission sent further correspondence to provide A.B. with an additional opportunity to contest the following facts as asserted by the NSW Department:

“The applicant worker was employed as a teacher in a NSW government school. He is employed pursuant to the Teaching Service Act 1980, and at all material times his employment is subject to that Act.

Section 44(2) of the Teaching Service Act provides “Those persons [employed in the teaching service] are taken to be employed by the Government of New South Wales in the service of the Crown.”

Section 11 of the Act provides that where the Secretary of the Department of Education and Communities exercises an employment function under the Act, he or she is acting for the Crown.”

[9] Further A.B. was advised that in the absence of a response by 4.00pm Friday 12 September 2014, the application would be determined by the Commission based upon the material already before the Commission including the assertions in the employer’s response document set out above.

[10] I note that the Commission had earlier forwarded to A.B. a copy of a decision 1 dealing with similar circumstances to assist him to appreciate the nature of the present jurisdiction and the potential implications of the NSW Department’s assertions.

[11] A.B. has not subsequently contacted the Commission as directed and accordingly, I will now determine the application on the basis outlined above.

2. Coverage of the anti-bullying laws

[12] In order for the anti-bullying jurisdiction to be engaged, the Commission must find that a worker has been bullied at work within the meaning of the FW Act. Section 789FD is in the following terms:

“789FD 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.”

[13] The initial focus of the definition is the workplace where the applicant is at work when the alleged unreasonable conduct takes place. That is, the conduct must take place whilst the worker is at work in a constitutionally-covered business.

[14] In this case, the workplace is a New South Wales public school. There is no suggestion of any other (corporate) entity employing in, or more importantly conducting the “business” of the school.

[15] The workplace in this matter is not located in a Territory 2 and there is no suggestion that it is conducted by the Commonwealth or a Commonwealth authority. Assuming for present purposes that the workplace is a business or undertaking within the meaning of the Work Health and Safety Act 2011, in order to be a constitutionally-covered business and fall within the scope of s.789FD, it must be conducted by a constitutional corporation.

3. Is the workplace conducted by a constitutional corporation?

[16] The term “constitutional corporation” is defined in s.12 of the Act in the following terms:

“constitutional corporation means a corporation to which paragraph 51(xx) of the Constitution applies.”

[17] The Constitution, in effect, defines “constitutional corporations” as follows:

“Foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth.” 3

[18] The workplace is conducted by the NSW Department and the employer of A.B. is the Crown in the right of the State of New South Wales. Even if the Department is a separate legal entity from the State (and I make no finding in that regard), the Department and/or the State of New South Wales are not corporations within the meaning of the Constitution. 4 The absence of a corporate entity means that it cannot be a constitutional corporation.

[19] Accordingly, the workplace concerned is not a constitutionally-covered workplace.

[20] For completeness, I also note that s.37 of the FW Act provides as follows:

“37 Act binds Crown

(1) This Act binds the Crown in each of its capacities.

(2) However, this Act does not make the Crown liable to be prosecuted for an offence.”

[21] This provision establishes the capacity of the FW Act to bind and apply to the Crown in its various capacities. Whether the various provisions of the Act apply to those various capacities depends upon how the coverage of those provisions is expressed. This follows because various parts of the FW Act are specified to apply to different parties. This includes, in most cases, reference to national system parties, whereas in other parts of the Act, a different basis for the coverage is stated.

[22] Importantly, the coverage of the anti-bullying provisions of the FW Act is not based upon the definition of national system parties, and does not rely upon the potential coverage of the Crown or the referral of powers by most States, which includes New South Wales. 5 This is evident from the express terms of the FW Act discussed above, and as a result, s.37 also does not provide a basis for A.B.’s application to be dealt with under the immediate provisions.

4. Conclusions

[23] As a result of the above findings, even if bullying behaviour occurred at the particular New South Wales government school concerned, it could not lead to a finding that the applicant had been bullied at work within the meaning of the FW Act.

[24] There is accordingly, no jurisdiction to determine this particular application.

[25] The application is dismissed and I so order.

 1   S.W. [2014] FWC 3288.

 2  New South Wales is not a Territory as defined in s.2B of the Acts Interpretation Act 1901, which refers to s.122 of the Australian Constitution.

 3   Australian Constitution s.52(i).

 4   See also S.W. [2014] FWC 3288.

 5   In any event, New South Wales has not referred industrial relations powers to the Commonwealth over its public service.

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