[2014] FWC 4476



Fair Work Act 2009

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

Ms S.W.



Application for costs in connection with an application for an FWC order to stop bullying - substantive application dismissed on jurisdictional grounds - whether should have been reasonably apparent to applicant that application had no reasonable prospects of success - whether other grounds warrant a costs order - application for costs dismissed.

1. Background to the costs application

[1] This matter arises in the context of an application by Ms S.W. under s.789FC of the Fair Work Act 2009 (the FW Act) for an order to stop bullying conduct. The applicant is a teacher employed under the School Education Act 1999 (WA) (School Education Act) and the workplace concerned is a public school conducted by the Western Australian Department of Education (the WA Department).

[2] The s.789FC application was dismissed by the Commission on jurisdictional grounds in a decision 1 issued on 2 June 2014 (the substantive decision). The basis of the decision was that the relevant workplace was not a constitutionally-covered workplace,2 and that even if bullying behaviour occurred, it could not lead to a finding that the applicant had been bullied at work within the particular meaning of the FW Act.3

[3] The substantive decision concluded as follow:

[4] The WA Department applied for costs immediately upon the substantive decision being issued by the Commission.

[5] Ms S.W. subsequently filed a notice of discontinuance in relation to the s.789FC application.

2. The costs application

[6] The WA Department has sought that costs be awarded against Ms S.W. principally on the following basis:

[7] The reference to 1.1 in Form F72 refers to the original application and relates to whether Ms S.W. was still employed or engaged at the relevant workplace and/or required to still interact with the individuals cited in the application as being responsible for the alleged bullying conduct.

[8] Ms S.W. has opposed the costs application and in effect contends, amongst other matters, that:

3. Consideration

[9] Section 611 of the FW Act provides as follows:

[10] In the absence of a particular provision dealing with costs in relation to anti-bullying matters under Part 6-4B of the FW Act, s.611 applies to such applications.

[11] The discontinuance of the s.789FC application by Ms S.W. does not prevent the costs application being considered and determined by the Commission.

[12] A recent Full Bench of the Commission 5 considered the operation of the relevant costs provisions of the FW Act and summarised them in the following terms (endnotes omitted):

[13] The particular operation of s.611(2)(b) of the FW Act has also been summarised by a Full Bench of the Commission in Metecno Pty Ltd T/A Bondor v I Cameron 6 in the following terms (endnotes omitted):

[14] Accordingly, it is necessary to objectively consider whether any of the grounds in s.611(2) apply to the circumstances of the s.789FC application. Only in the case of a positive finding on one of those grounds does a discretion arise to order that some or all of the other party’s costs be paid.

[15] The WA Department relies principally upon the notion that it should have been reasonably apparent to Ms S. W. that her application had no reasonable prospect of success. Whilst not expressly relying upon the concept of the application being made vexatiously or without reasonable cause, the costs application does raise allegations of inaccuracy and accordingly I have considered all of the potential grounds raised by s.611(2) of the FW Act.

[16] I deal firstly with the issues associated with the workplace and the fact that Ms S.W. is now at a different work location than the school where the alleged bullying took place. I assume for present purposes that the basis of the WA Department’s grounds is related to the fact that in order to grant an anti-bullying order, the Commission must, in effect, be satisfied that the applicant worker is at risk of further bullying by the individuals cited in the application. 7

[17] I have not dealt with the merit of the s.789FC application and as a result no findings have been made about the substance of the application. It is however reasonably apparent from the application that the individuals cited in the application include both those with whom she worked at the School concerned and others more generally in the WA Department. Ms S.W. also contended that the transfer from the original school itself was part of the unreasonable conduct.

[18] It is conceivable that an applicant in these circumstances could contend that there was a further risk of bullying as a result of more general dealings with the individuals as part of departmental business and work interactions with them more generally. Further, the applicant could have argued that she was seeking to overturn the effect of the transfer through other means, and as a result, the risk of further bullying remained in that context.

[19] In any event, in relation to the future risk grounds associated with her work location, there is no basis to find that Ms S.W. made the application vexatiously or without reasonable cause, or in circumstances where it should have been apparent that it had no reasonable prospects of success.

[20] The jurisdictional objection determined by the Commission related to the whether the workplace concerned was a constitutionally-covered workplace. In this case, this ultimately meant a consideration as to whether the workplace was conducted by a constitutional corporation. I accept that the limitations upon the operation of the anti-bullying jurisdiction, including that it may not apply to workers in State Government Departments, have been communicated publically by the Commission and others. In that light, I could be satisfied that it should have been reasonably apparent to Ms S.W. that a potential jurisdictional hurdle might arise concerning her application. However, the relevant question is whether it should have been reasonably apparent to Ms S.W. that her application had no reasonable prospects of success.

[21] Although as general rule, it might be said that employees of State Government Departments are not covered by the anti-bullying jurisdiction of the FW Act, the jurisdictional matter actually required consideration as to the corporate or other status of the applicant’s workplace. That is, the identity of the applicant’s employer may not always be decisive; rather it is a question as to who is conducting the workplace concerned and whether it is a constitutionally-covered workplace. 8 This makes these matters more complex than might initially appear.

[22] The fact that the WA Department operated with an ABN was a consideration but ultimately not decisive. Further, all of the other contentions advanced by Ms S.W. concerning the nature of her employer and workplace ultimately failed. However, the operation of the anti-bullying jurisdiction of the Commission is relatively new, the potential application of the laws in similar circumstances had not been previously determined, and relatively complex legal issues were ultimately involved given the need to ascertain the nature of the workplace concerned.

[23] I note also that Ms S.W. contends that she was advised to bring the s.789FC application. There is no evidence to support those particular contentions and despite the absence of objection from the WA Department, I do not intend to rely upon these in determining the costs application. Further, as outlined earlier, I have made no findings about the substantive allegations made by Ms S.W. in the originating application, given the absence of a merits hearing. The allegations made would however appear to be capable of being considered as unreasonable conduct for the purposes of this jurisdiction.

4. Conclusions

[24] I am not persuaded that it should have been reasonably apparent to Ms S.W. that her application had no reasonable prospects of success. I am also not satisfied that any of the grounds raised by s.611 apply in this case.

[25] Accordingly, the costs application is dismissed and I so order.

Written submissions:

The Western Australian Department of Education/The Crown in the Right of the State of Western Australia:

3 and 13 June 2014.

Ms S.W:

4 and 17 June 2014.

 1   [2014] FWC 3288.

 2   Ibid at [26].

 3   Ibid at [27].

 4   Email application from WA Department dated 3 June 2014.

 5   E. Church v Eastern Health t/as Eastern Health Great Health and Wellbeing [2014] FWCFB 810.

 6   [2014] FWCFB 2128.

 7   S.789FF of the FW Act.

 8   See para [17] of the substantive decision.

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