DECISION

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

Nancy Mathew
(SO2022/22)

Application for an FWC order to stop bullying - jurisdiction.

[1] This decision concerns an application made by Mrs Nancy Mathew (the Applicant) under section 789FC of the Fair Work Act 2009 (Cth) (the Act). The employer/principal of the Applicant is WA County Health Services (WACHS or the Employer).

[2] On 25 January 2022, the Employer objected to the application on two grounds; one of which was that the Applicant is not working in a constitutionally-covered business and therefore the Commission does not have jurisdiction to issue a stop bullying order.

[3] Consequently, on 1 February 2022 I wrote to the Applicant and explained my preliminarily view was that the Employer is not a constitutionally-covered business and therefore this application cannot be made and must be dismissed. The Applicant was invited to provide submissions in response to the preliminarily view expressed.

[4] As at the date of this decision no response has been received by the Applicant.

[5] With respect to the matters considered below it should be remembered that the Commission has made no decision as to whether or not the Applicant has been or is being bullied at work.

The legislation

[6] Section 789FD of the Act, set out below, prescribes when a worker has been bullied at work.

“789FD When is a worker bullied at work or sexually harassed 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.

(2A) A worker is sexually harassed at work if, while the worker is at work in a constitutionally‑covered business, one or more individuals sexually harasses the worker.

(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.”

[7] Section 14 of the Act defines a national system employer as follows:

“14 Meaning of national system employer

(1) A national system employer is:

(a) a constitutional corporation, so far as it employs, or usually employs, an individual; or

(b) the Commonwealth, so far as it employs, or usually employs, an individual; or

(c) a Commonwealth authority, so far as it employs, or usually employs, an individual; or

(d) a person so far as the person, in connection with constitutional trade or commerce, employs, or usually employs, an individual as:

(i) a flight crew officer; or

(ii) a maritime employee; or

(iii) a waterside worker; or

(e) a body corporate incorporated in a Territory, so far as the body employs, or usually employs, an individual; or

(f) a person who carries on an activity (whether of a commercial, governmental or other nature) in a Territory in Australia, so far as the person employs, or usually employs, an individual in connection with the activity carried on in the Territory.

Note 1: In this context, Australia includes the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands (see paragraph 17(a) of the Acts Interpretation Act 1901).

Note 2: Sections 30D and 30N extend the meaning of national system employer in relation to a referring State.

(2) Despite subsection (1) and sections 30D and 30N, a particular employer is not a national system employer if:

(a) that employer:

(i) is a body established for a public purpose by or under a law of a State or Territory, by the Governor of a State, by the Administrator of a Territory or by a Minister of a State or Territory; or

(ii) is a body established for a local government purpose by or under a law of a State or Territory; or

(iii) is a wholly‑owned subsidiary (within the meaning of the Corporations Act 2001) of, or is wholly controlled by, an employer to which subparagraph (ii) applies; and

(b) that employer is specifically declared, by or under a law of the State or Territory, not to be a national system employer for the purposes of this Act; and

(c) an endorsement by the Minister under paragraph (4)(a) is in force in relation to the employer.

(3) Paragraph (2)(b) does not apply to an employer that is covered by a declaration by or under such a law only because it is included in a specified class or kind of employer. …”

[8] Section 12 of the Act defines a constitutional corporation as “a corporation to which paragraph 51(xx) of the Constitution applies.”

[9] Paragraph 51(xx) of the Constitution applies to “foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth.”

The Employer’s submissions

[10] The Employer submits it is a board governed health service provider (HSP) established pursuant to s.32(1) of the Health Services Act 2016 (WA) (HS Act).

[11] Section 33 of the HS Act prescribes WACHS, as a HSP, is an agent of the State, and has the status, immunities, and privileges of the State.

[12] WACHS’ main function is to provide health services for regional Western Australians; teaching, training and research to support the provision of health services as agreed with the Department CEO; and any other services agreed with the Department CEO.

[13] The Employer submits the Applicant’s terms and conditions of employment are governed by the WA Health System - Australian Nursing Federation - Registered Nurses, Midwives, Enrolled (Mental Health) and Enrolled (Mothercraft) Nurses - Industrial Agreement 2020, an industrial instrument registered pursuant to section 41 of Division 2B of the Industrial Relations Act 1979 (WA).

[14] Section 14(2)(a)(i) of the Act expressly states a body established for a public purpose by, or under a law of a State or Territory, by the Governor of the State, by the Administrator of a State or Territory, or by a Minister of a State or Territory, is declared not to be a national system employer.

[15] WACHS delivers health care services free of charge except where a person is admitted as a private patient. WACHS does not engage in trading. Any revenue generated by WACHS is incidental to its primary purpose, to provide health care services to citizens in regional Western Australians and therefore, it is submitted, the Employer is not a trading or financial corporation for the purposed of paragraph 51(xx) of the Constitution.

[16] For these reasons the Respondent submits the application should be dismissed.

Consideration

[17] There is nothing before me in contrary to the Respondent’s arguments in this matter.

[18] I am satisfied, in accordance with s.14(2)(a)(i) of the Act, the Respondent is excluded from the definition of a national system employer because it is a body established for a public purpose by, or under a law of a State or Territory, by the Governor of the State, by the Administrator of a State or Territory, or by a Minister of a State or Territory.

[19] Relevantly, the State of Western Australia has not referred its industrial powers to the Commonwealth.

[20] For completeness, I will now turn to consider whether the Respondent is a trading or financial corporation for the purposes of paragraph 51 (xx) of the Constitution.

[21] In Aboriginal Legal Service of WA Inc v Lawrence [No 2] 1 (ALS) the Western Australian Court of Appeal examined a number of High Court decisions which dealt with the test to be applied in determining whether or not a corporation should be categorised as a trading corporation for the purposes of paragraph 51(xx) of the Constitution. In ALS the Court summarised the principles that might be drawn from those and other cases as follows:

“68. The more relevant (for present purposes) principles that might be drawn from these and other cases are as follows:

(1) A corporation may be a trading corporation even though trading is not its predominant activity: Adamson at 239; State Superannuation Board at 303-304; Tasmanian Dam case at 156, 240, 293; Quickenden at [49]-[51], [101]; Hardeman at [18].

(2) However, trading must be a substantial and not merely a peripheral activity: Adamson at 208, 234, 239; State Superannuation Board at 303-304; Hughes v Western Australian Cricket Association (Inc) (1986) 19 FCR 10 at 20; Fencott at 622; Tasmanian Dam case at 156, 240, 293; Mid Density at 584; Hardeman at [22].

(3) In this context, “trading” is not given a narrow construction. It extends beyond buying and selling to business activities carried on with a view to earning revenue and includes trade in services: Ku-ring-gai at 139, 159-160; Adamson at 235; Actors and Announcers Equity Association of Australia v Fontana Films Pty Ltd (1982) 150 CLR 169 at 184-185, 203; Bevanere Pty Ltd v Lubidineuse (1985) 7 FCR 325 at 330; Quickenden at [101].

(4) The making of a profit is not an essential prerequisite to trade, but it is a usual concomitant: St George County Council at 539, 563, 569; Ku-ring-gai at 140, 167; Adamson at 219; E at 343, 345; Pellow at [28].

(5) The ends which a corporation seeks to serve by trading are irrelevant to its description: St George County Council at 543, 569; Ku-ring-gai at 160; State Superannuation Board at 304-306; E at 343. Consequently, the fact that the trading activities are conducted is the public interest or for a public purpose will not necessarily exclude the categorisation of those activities as “trade”: St George County Council at 543 (Barwick CJ); Tasmanian Dam case at 156 (Mason J).

(6) Whether the trading activities of an incorporated body are sufficient to justify its categorisations as a “trading corporation” is a question of fact and degree: Adamson at 234 (Mason J); State Superannuation Board at 304; Fencott at 589; Quickenden at [52], [101]; Mid Density at 584.

(7) The current activities of the corporation, while an important criterion for determining its characterisation, are not the only criterion. Regard must also be had to the intended purpose of the corporation, although a corporation that carries on trading activities can be found to be a trading corporation even if it was not originally established to trade: State Superannuation Board at 294-295, 304-305; Fencott at 588-589, 602, 611, 622-624; Hughes at 20; Quickenden at [101]; E at 344; Hardeman at [18].

(8) The commercial nature of an activity is an element in deciding whether the activity is in trade or trading: Adamson at 209, 211; Ku-ring-gai at 139, 142, 160, 167; Bevanere at 330; Hughes at 19-20; E at 343; Fowler; Hardeman at [26].”

[22] Adopting the principles set out above, on the information before me, I am satisfied the Employer does not engage in trading and any revenue generated by the Employer is incidental therefore it is not a trading corporation and there is nothing to suggest that that the Employer is otherwise a constitutional corporation.

[23] The Commission only has jurisdiction to make an order under section 789FF of the Act if, amongst other prerequisites, the Applicant is at work in a constitutionally-covered business. Where that is not the case there will be no reasonable prospect of success of an application for an order to stop bullying.

[24] 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.

[25] In this instance, the Employer is not a constitutionally-covered business.

[26] In the circumstances 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.

[27] An Order [PR738405] to this effect will be issued in conjunction with this decision.

Final written submissions:

Respondent, 25 January 2022.

Printed by authority of the Commonwealth Government Printer

<PR738404>

 1   (2008) 252 ALR 136.