Fair Work Act 2009
s.604—Appeal of decision

Appeal against decisions [[2015] FWC 4980 and [2015] FWC 5038] of Commissioner Williams at Perth on 23 July 2015 in matters number AB2014/175 and AB2015/251.

Introduction

[1] Mr Garth Atkinson has lodged appeals 1 against two decisions2 and orders3 of Commissioner Williams in respect of applications to the Fair Work Commission (FWC) by Mr Atkinson for orders to stop bullying.

[2] The first decision 4 of Commissioner Williams concerns an application made by Mr Atkinson on 2 November 20145 (the 2014 application). The second decision6 of Commissioner Williams concerns another application made by Mr Atkinson on 18 May 20157 (the 2015 application).

[3] The decisions and orders which are the subject of these appeals were to dismiss Mr Atkinson’s applications for orders to stop bullying.

[4] We deal with these appeals together. The parties have made written submissions to us in the appeals.

[5] We have decided to deal with and determine these appeals without holding a hearing as it appears to us that the appeals can be adequately determined without persons making oral submissions for consideration in the appeals and the persons who would otherwise, or who will, make submissions for consideration in the appeals consent to the appeals being heard or conducted without a hearing.

Commissioner’s decisions

[6] The Commissioner dismissed both applications pursuant to s.587(1)(c) of the Fair Work Act 2009 (Cth) (FW Act) on the basis that he had concluded the 2014 application and 2015 application had no reasonable prospects of success.

[7] Section 587 of the FW Act is relevantly as follows:

“587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if: ...

(c) the application has no reasonable prospects of success…

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.”

[8] Part 6-4B of the FW Act which concerns “Workers bullied at work” is relevantly as follows:

“789FA Guide to this Part

This Part allows a worker who has been bullied at work to apply to the FWC for an order to stop the bullying.

789FB Meanings of employee and employer

In this Part, employee and employer have their ordinary meanings.

DIVISION 2—Stopping workers being bullied at work

789FC Application for an FWC order to stop bullying

(1) A worker who reasonably believes that he or she has been bullied at work may apply to the FWC for an order under section 789FF.

(2) For the purposes of this Part, worker has the same meaning as in the Work Health and Safety Act 2011, but does not include a member of the Defence Force.

Note: Broadly, for the purposes of the Work Health and Safety Act 2011, a worker is an individual who performs work in any capacity, including as an employee, a contractor, a subcontractor, an outworker, an apprentice, a trainee, a student gaining work experience or a volunteer…

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.

789FE FWC to deal with applications promptly

(1) The FWC must start to deal with an application under section 789FC within 14 days after the application is made.

Note: For example, the FWC may start to inform itself of the matter under section 590, it may decide to conduct a conference under section 592, or it may decide to hold a hearing under section 593.

(2) However, the FWC may dismiss an application under section 789FC if the FWC considers that the application might involve matters that relate to:

(a) Australia’s defence; or

(b) Australia’s national security; or

(c) an existing or future covert operation (within the meaning of section 12E of the Work Health and Safety Act 2011) of the Australian Federal Police; or

(d) an existing or future international operation (within the meaning of section 12E of the Work Health and Safety Act 2011) of the Australian Federal Police.

Note: For another power of the FWC to dismiss applications under section 789FC, see section 587.

789FF FWC may make orders to stop bullying

(1) If:

(a) a worker has made an application under section 789FC; and

(b) the FWC is satisfied that:

(i) the worker has been bullied at work by an individual or a group of individuals; and

(ii) there is a risk that the worker will continue to be bullied at work by the individual or group;

then the FWC may make any order it considers appropriate (other than an order requiring payment of a pecuniary amount) to prevent the worker from being bullied at work by the individual or group.

(2) In considering the terms of an order, the FWC must take into account:

(a) if the FWC is aware of any final or interim outcomes arising out of an investigation into the matter that is being, or has been, undertaken by another person or body—those outcomes; and

(b) if the FWC is aware of any procedure available to the worker to resolve grievances or disputes—that procedure; and

(c) if the FWC is aware of any final or interim outcomes arising out of any procedure available to the worker to resolve grievances or disputes—those outcomes; and

(d) any matters that the FWC considers relevant.”

[9] Prior to making the decisions and orders to dismiss Mr Atkinson’s applications, the Commissioner had been advised that Mr Atkinson’s employment had been terminated on 3 June 2015.

[10] On 4 June 2015, the Commissioner wrote to Mr Atkinson as follows:

“The Commission has been advised that your employment with Killarney Properties Pty Ltd T/A Perm-A-Pleat Schoolwear has been terminated. As a natural consequence there is no risk to you, the Applicant in these matters, being bullied at work in the future.

My preliminary view is that in these circumstances there is no power for the Commission to make an order to stop bullying and so these applications have no reasonable prospect of success and must be dismissed.

You are invited to put any submission on the view expressed above before these matters are decided. Your submission should be provided to chambers.williams.c@fwc.gov.au by 4.00pm Thursday, 18 June 2015.”

[11] In response to the Commissioner’s letter of 4 June 2015, Mr Atkinson provided written submissions opposing the Commission dismissing his 2014 application and 2015 application.

[12] In his decision on the 2014 application and the 2015 application, the Commissioner summarised these submissions as follows:

“[5] Mr Atkinson has provided written submissions opposing the Commission dismissing his application. Mr Atkinson made submissions regarding concerns raised in a previous Federal enquiry in 2012 into workplace bullying. Mr Atkinson challenged the reasoning and decision of Deputy President Gostencnik in the decision of Shaw v ANZ. Mr Atkinson submitted that the Commission should decide his application on terms other than those prescribed by the application and make a summary instead of an order and consequently there is no basis for his application to be dismissed because no order to prevent future bullying is required.

[6] Mr Atkinson’s submissions discloses that he has made an application under section 365 of the Act alleging the reasons for his termination of employment involve a breach of the general protections provisions.” 8 [Footnotes omitted]

[13] The Commissioner considered these submissions and determined to dismiss the 2014 application and 2015 application as follows:

“[8] Firstly the submission that the Commission should decide Mr Atkinson’s section 789FC application in his favour and issue some summary or statement without making an order to stop the bullying ignores the fact that such an application in subsection 789FC (1) of the Act is expressly an application ‘...for an order under 789FF’, which is an order to stop bullying. This is the sole purpose of the application he has made. Indeed section 789FA which is a guide to this Part of the Act explains that this Part of the Act is to allow a worker to apply for an order to stop bullying at work.

[9] With respect to the matters considered below it should be remembered that the Commission has made no decision as to whether or not Mr Atkinson has been bullied at work in the past.

[10] Relevantly Mr Atkinson’s employment has now been terminated and consequently he is no longer ‘...at work...’ Therefore I am not satisfied there is a risk that in future Mr Atkinson will be bullied at work.

[11] Mr Atkinson has made a section 365 General Protections application regarding his termination of employment. Whether Mr Atkinson is seeking reinstatement as a remedy is not known. If he is seeking reinstatement there is obviously no certainty as to the success or not of his application. Even if he is successful with his section 365 application there can also be no certainty that reinstatement would be ordered in any event; that would be a decision for the Court.

[12] If at some point in the future Mr Atkinson is indeed reinstated he is not prevented from making a new application under section 789FC of the Act if necessary. The fresh application could then properly consider what may well be changed circumstances given what in all likelihood will have been an extended period of time which has passed and could also take into account the significant new development being the decision of a Court to reinstate Mr Atkinson. As can be seen dismissing this application does not disadvantage Mr Atkinson. Adjourning this application indefinitely because of the remote possibility Mr Atkinson is reinstated at some time in the future is consequently not warranted.

[13] The Commission under section 587(1)(c) of the Act is specifically empowered to dismiss an application if it has no reasonable prospect of success.

[14] The Commission only has jurisdiction to make an order under section 789FF of the Act if, amongst other prerequisites, the Commission is satisfied there is a risk of continued bullying of the applicant at work. Where there is not a risk of future bullying at work there will be no reasonable prospect of success of an application for an order to stop bullying.

[15] In the circumstances of this matter I find that there is no reasonable prospect of an order being made by the Commission under section 789FF of the Act. Consequently I will exercise my discretion and dismiss this application that was made under section 789FC of the Act.

[16] An order to this effect will be issued in conjunction with this decision.” 9

Grounds of appeal

[14] Mr Atkinson’s grounds of appeal are, in summary, that:

● The Commissioner erred in finding his s.789FC applications had “no reasonable prospects of success”.

● The Commissioner erred in concluding he had to dismiss his s.789FC applications once he had found the applications had no reasonable prospects of success.

● He submitted to the Commissioner that his s.789FC applications should not be dismissed under s.587(1)(c) as he wanted his applications decided “with a summary instead of with an order pursuant to s.599 of the [FW] Act”. However, the Commissioner did not refer to this submission in his decision or deal with it.

● The Commissioner erred in deciding he could not exercise his discretion under s.789FF of the FW Act to make an order to stop bullying in respect of his s.789FC applications, particularly in circumstances where his employment was terminated subsequent to making his s.789FC applications.

● Prior to him making submissions in response to the Commissioner’s letter of 4 June 2015, the Commissioner’s Associate advised him that the Commissioner intended to dismiss his s.789FC applications.

[15] In support of his grounds of appeal, Mr Atkinson relied on the Acts Interpretation Act 1901 (Cth), the objects of the FW Act, the Explanatory Memoranda to now Part 6-4B of the FW Act, other decisions of the FWC and other bodies, and journal articles.

[16] The appeal is opposed by the respondents to Mr Atkinson’s s.789FC applications.

Consideration of the appeals

[17] In our view, Mr Atkinson’s appeals are without merit.

[18] It is evident from the Commissioner’s decisions 10 that the Commissioner dismissed Mr Atkinson’s s.789FC applications in the exercise of his discretion under s.587(1)(c) of the FW Act.

[19] As we have indicated, s.587(1)(c) provides that:

● if an application has no reasonable prospects of success,

● then the FWC may dismiss the application.

[20] The Commissioner found that Mr Atkinson’s employment had been terminated and consequently he was no longer “…at work…”. That finding was in accordance with the material before him.

[21] On the basis of that finding the Commissioner concluded that one of the pre-requisites in s.789FF of the FW Act for him to be able to make an order to stop bullying, namely that “there is a risk that the worker will continue to be bullied ‘at work’ by the individual or group”, was not satisfied in respect of Mr Atkinson’s s.789FC applications. There is no error in that conclusion.

[22] The fact that, at the time the Commissioner dismissed Mr Atkinson’s s.789FC applications, Mr Atkinson had an unfinalised general protections court application in respect of the termination of his employment on 3 June 2015 and the fact that a court has the power to make a reinstatement order in respect of a general protections court application, 11 do not preclude the Commissioner’s conclusion. Those facts do not mean that at the time the Commissioner dismissed Mr Atkinson’s s.789FC applications there was “a risk that [Mr Atkinson] will continue to be bullied at work” 12 by the individual or group against whom he made the s.789FC applications.

[23] As a consequence of concluding that one of the pre-requisites for making an order to stop bullying in respect of Mr Atkinson’s s.789FC applications was not satisfied, the Commissioner determined that Mr Atkinson’s s.789FC applications had no reasonable prospects of success. There is no error in that determination. The determination is not contrary to authority, including that of the High Court of Australia in Spencer v The Commonwealth. 13

[24] Having determined that Mr Atkinson’s s.789FC applications had no reasonable prospects of success the Commissioner then exercised his discretion under s.587(1)(c) of the FW Act to dismiss Mr Atkinson’s s.789FC applications. It is evident from the Commissioner’s decisions that, in exercising his discretion to dismiss Mr Atkinson’s s.789FC applications, the Commissioner was conscious of the discretionary considerations raised by Mr Atkinson as to why his s.789FC applications should not be dismissed, including his submissions for relief in respect of his s.789FC applications being constituted by something other than an order. However, the Commissioner was also conscious that Mr Atkinson had made a general protections court application and of the potential consequences of that on Mr Atkinson being able to make another s.789FC application. In the circumstances, it was reasonably open to the Commissioner to exercise his discretion under s.587(1)(c) of the FW Act as he did.

[25] Accordingly, we do not accept that the Commissioner erred in finding Mr Atkinson’s s.789FC applications had no reasonable prospects of success. Nor do we accept the Commissioner concluded he had to dismiss Mr Atkinson’s s.789FC applications once he found they had no reasonable prospects of success. Rather the Commissioner dismissed Mr Atkinson’s s.789FC applications in the exercise of his discretion under s.587(1)(c) of the FW Act.

[26] The exercise of that discretion was reasonably open to the Commissioner notwithstanding Mr Atkinson’s submissions, which the Commissioner recognised, about other forms of relief in respect of his s.789FC applications, including a recommendation and so on, instead of an order to stop bullying.

[27] Further, we do not accept that, to the extent he explicitly or implicitly did so, the Commissioner erred in deciding he could not exercise his discretion under s.789FF of the FW Act to make an order to stop bullying in respect of Mr Atkinson’s s.789FC applications. Once the Commissioner concluded a pre-requisite to the making of an order under s.789FF of the FW Act was not satisfied, he was precluded by s.789FF of the FW Act from exercising any discretion to make an order under s.789FF of the FW Act.

[28] The suggestion of Mr Atkinson that he was denied procedural fairness by the Commissioner, or that the Commissioner was biased in some way as he had formed the intention to dismiss Mr Atkinson’s s.789FC applications prior to receiving Mr Atkinson’s submissions in response to his letter of 4 June 2015, is serious but not persuasive. Mr Atkinson raised no such suggestion prior to receiving the Commissioner’s decision on his s.789FC applications. Further, except as provided by the FW Act, the FWC is not required to hold a hearing in performing its functions or exercising its powers. Nothing in the FW Act requires the FWC to hold a hearing when exercising its powers under s.587(1)(c) of the FW Act. 14 The Commissioner’s decision to deal with Mr Atkinson’s s.789FC applications on the basis of written submissions was, in the circumstances, reasonably available to him under the FW Act15 and constituted no denial of procedural fairness.

[29] Mr Atkinson was critical of the decisions of the FWC in Shaw v ANZ (Shaw) 16 and Obatoki v Mallee Track Health and Community Services and Others (Obatoki).17

[30] In this regard, Mr Atkinson pointed out that the Revised Explanatory Memorandum to now Part 6-4B of the FW Act stated:

“New section 789FE – FWC to deal with applications promptly

115. New subsection 789FE(1) provides that the FWC must start to deal with an application under new section 789FC within 14 days after the application is made. This may include the FWC taking steps to inform itself of the matters under section 590 of the FW Act, conducting a conference under section 592 of the FW Act or deciding to hold a hearing under section 593 of the FW Act.

116. Section 590 of the FW Act provides the FWC with flexibility to inform itself as it considers appropriate in relation to an application for an order to stop the bullying. This may include contacting the employer or other parties to the application, conducting a conference or holding a formal hearing. In the course of dealing with a matter, the FWC may make a recommendation to the parties or express an opinion.

117. The FWC may also refer a matter to a WHS regulator or another regulatory body. Section 655 of the FW Act enables the President to authorise the disclosure of information acquired by the FWC in accordance with that section.

118. New subsection 789FE(2) permits the FWC to dismiss a workplace bullying application if it considers that the application might involve matters relating to Australia’s defence, national security, or existing or further covert to international operations of the AFP.” 18

[31] Having regard to this Revised Explanatory Memorandum, Mr Atkinson submitted that in dealing with a s.789FC application the FWC is not confined to making an order under s.789FF of the FW Act.

[32] We are not persuaded the decisions in Shaw and Obatoki are plainly wrong.

[33] Both Shaw and Obatoki concerned the FWC dismissing a s.789FC application under s.587(1)(c) of the FW Act. In each case, the FWC formed the view that the s.789FC application had no reasonable prospects of success as the applicant was no longer “at work” and, therefore, a pre-requisite for the making of a s.789FF order did not exist. Having formed that view, the FWC then went on to exercise its discretion under s.587(1)(c) of the FW Act to dismiss the s.789FC application.

[34] The Explanatory Memorandum to which Mr Atkinson referred does not suggest that the FWC is required to make a recommendation or express an opinion in respect of an application for an order to stop bullying or to refer a matter to a WHS regulator or another regulatory body. Nor does the Explanatory Memorandum preclude the FWC exercising its power under s.587(1)(c) of the FW Act. Indeed, the note to s.789FE of the FW Act, with which the Revised Explanatory Memorandum is concerned, points out s.587 of the FW Act provides the FWC with power to dismiss a s.789FC application.

[35] In this decision, we are not suggesting that it will always be appropriate for the FWC to dismiss a s.789FC application where an employee is dismissed from their employment. Depending on the circumstances in each case there may be a number of relevant considerations, including the prospect of reinstatement through other proceedings, which could warrant the FWC dealing with a s.789FC application notwithstanding the dismissal of the employee.

[36] Nonetheless, the Commissioner’s approach in respect of Mr Atkinson’s s.789FC applications was consistent with his powers under the FW Act and reasonably open to him in the exercise of his discretion. Mr Atkinson’s other submissions that the Commissioner erred by giving more weight to the heading of a section of the FW Act than to the content of the section, by not interpreting relevant sections of the FW Act in a manner that best aligns with the object of the FW Act, by failing to take into account s.599 of the FW Act and by not considering the legislative intent of the anti-bullying provisions of the FW Act or the Explanatory Memoranda that disclose that legislative intent are all without merit.

Permission to appeal

[37] We are not persuaded it is in the public interest for us to grant permission to appeal. Nor, having considered Mr Atkinson’s grounds of appeal, are we satisfied we should otherwise grant permission to appeal in these matters.

[38] Mr Atkinson has not persuaded us that the decisions in Shaw and Obatoki are plainly wrong or that his submissions on s.599 of the FW Act attract the public interest. Further, the Commissioner’s decisions that Mr Atkinson’s s.789FC applications had no reasonable prospects of success are not contrary to authority. We are not persuaded that the Commissioner’s decisions demonstrate substantial injustice or are attended with sufficient doubt to warrant their reconsideration on appeal, or that in making the decisions the Commissioner acted upon a wrong principle or failed to take into account relevant matters. Mr Atkinson has failed to demonstrate that the Commissioner’s decisions and orders in respect of his s.789FC applications are affected by error.

[39] We refuse permission to appeal in these matters.

SENIOR DEPUTY PRESIDENT

Final Written submissions:

Appellant, 29 September 2015.

Respondents, 22 September 2015.

 1   Garth Atkinson v Killarney Properties Pty Ltd and Adrian Palm, C2015/5122 and Garth Atkinson v Killarney Properties Pty Ltd and Michael Palm. C2015/5123.

 2   Garth Atkinson, [2015] FWC 4980 and Garth Atkinson, [2015] FWC 5038.

 3   PR569679 and PR569757.

 4   Garth Atkinson, [2015] FWC 4980.

 5   Garth Atkinson, AB2014/175.

 6   Garth Atkinson, [2015] FWC 5038.

 7   Garth Atkinson, AB2015/251.

 8   Garth Atkinson, [2015] FWC 4980 and Garth Atkinson, [2015] FWC 5038

 9   Garth Atkinson, [2015] FWC 4980 and Garth Atkinson, [2015] FWC 5038.

 10   Ibid.

 11   Fair Work Act 2009 (Cth), ss.370 and 539.

 12   Fair Work Act 2009 (Cth), s.789FF(1)(b)(ii).

 13   (2010) 241 CLR 118 at 141.

 14   Fair Work Act 2009 (Cth), s.593(1).

 15   Fair Work Act 2009 (Cth) ss.589(1) and 590.

 16   [2014] FWC 3408.

 17   [2015] FWCFB 1661.

 18   Revised Explanatory Memorandum to the Fair Work Amendment Bill 2013.

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