DECISION

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

Mr K
(AB2021/506)

Application for an FWC order to stop bullying

[1] On 6 September 2021, Mr K applied for orders to stop bullying by the Fair Work Commission under s.789FC of the Fair Work Act 2009 (the bullying application). On 7 September 2021, Mr K made three further applications to the Commission. Respectively, these sought:

1. a waiver of the application fee under section 789FC(4) and regulation 6.07A of the Fair Work Regulations 2009 (the fee waiver application),

2. orders for persons to attend before the Commission under section 590(2)(a) of the Act (the attendance orders application), and

3. orders for the bank account details of his former employer so that he can repay monies “forced into [his] account under false pretence and defamatory allegations, in reliance on ss. 178, 179A, 536D(1) and 536D(2) of the Act (the corrupting benefits application).

[2] Section 593 of the Act provides that the Commission is not required to hold a hearing in performing functions or exercising powers, except as provided by the Act. In the circumstances, it is appropriate to determine each of these applications on the papers.

The fee waiver application

[3] Mr K seeks a waiver of the application fee that is otherwise required to be paid in connection with the bullying application. The waiver application states that Mr K has been “forced into unemployment”, is in “Poverty. Distressed”, and that his financial position is precarious. One element of the financial information relied upon by Mr K is a “debt” for “forced compensation”. Read together with the bullying application and the corrupting benefits application, I take this to be a reference to monies paid to Mr K by his former employer that he wishes to return. I am not satisfied that the portion of asserted debt attributable to forced compensation is properly characterised as a debt owed by Mr K. That being so, the value of the amount is unspecified. I cannot determine the true value of debts owed by Mr K. Putting the debt aside, I am satisfied that Mr K will suffer serious hardship if the fee is required to be paid. I waive the requirement for Mr K to pay the application fee for the bullying application.

The bullying application

[4] The bullying application is made against the Commission. It does not name any individual or group of individuals (other than by the collective reference to “the Commission”) as having engaged in bullying behaviour. I have decided to dismiss the bullying application under ss.587(1) of the Act. This is for two reasons:

1. Mr K is neither a ‘worker’ nor ‘at work’ in the Commission. He is a former employee of a large employer in South Australia. Mr K is unhappy with how the Commission has dealt with numerous applications to the Commission in connection with his former employment. However, Mr K cannot reasonably believe that he has been bullied at work in the Commission because he has never carried out any work, or engaged in any other authorised or permitted work-related activity, for the Commission. 1 He is not entitled to apply under section 789FC(1) of the Act for orders to stop bullying at work in the Commission.

2. Secondly, and because Mr K is not a ‘worker’ or ‘at work’ in the Commission, there is no foreseeable risk that he will continue to be bullied at work in the Commission. The application has no reasonable prospects of success. 2

The attendance orders application

[5] Mr K seeks orders for six individuals to attend before the Commission so that he can question them about the scope and legitimacy of a complaint made about him in relation to his former employment. These individuals are not members or staff of the Commission. They may have information about the events leading to the termination of Mr K’s former employment, but those matters are not relevant to whether Mr K has been bullied by the Commission. As the bullying application is to be dismissed, there is also no need for orders for any person to attend before the Commission in relation to the matter. It is not appropriate in those circumstances to grant the attendance orders application.

The corrupting benefits application

[6] The corrupting benefits application relies on ss.178, 179A, 536D(1) and 536D(2) of the Act. It is purportedly made against Minter Ellison and one of its employees or officers. The difficulty is that none of the sections relied upon permit an application to be made to the Commission. Further, the sections have no apparent operation in relation to Mr K.

[7] Section 178 of the Act deals with the appointment of bargaining representatives for the purposes of enterprise bargaining. Under section 178, such an appointment comes into force on the day specified in the instrument of appointment. Copies of the relevant instrument of appointment must be given to prescribed persons. Regulations can be made to prescribe matters relating to the qualifications or appointment of bargaining representatives. Section 178 is not a civil remedy provision. It does not impose any right or obligation on Mr K, as he is neither employer, employee nor bargaining representative.

[8] Section 179A of the Act requires employers to disclose certain matters if they will be covered by a proposed enterprise agreement (other than a greenfields agreement), a term or terms of which will or may result in “section 179 disclosable benefits” arising to beneficiaries. It operates in the sphere of enterprise bargaining, and specifically in connection with the requirements that must be met for an enterprise agreement to be approved. Section 179A is not a civil remedy provision. It does not apply to Mr K because he is not an employer or an associated entity of an employer that will, or can be expected to, be a beneficiary of a “section 179 disclosable benefit”.

[9] Section 536D makes it an offence to give, receive and/or solicit “corrupting benefits” to or in relation to registered organisations. The provisions of section 536D are civil remedy provisions, enforceable on application by a person with standing under Part 4-1 of the Act. Standing to apply for orders in relation to section 536 of the Act is conferred on an “employee” and on an “inspector” (defined in section 12 of the Act as a Fair Work inspector). Mr K is not an employee. He is not a Fair Work inspector. He has no standing to apply for orders in relation to alleged offences under section 536D of the Act, which in any event are matters for the courts.

Disposition

[10] For the reasons above:

1. The fee waiver application is granted.

2. The bullying application is dismissed.

3. The attendance orders application is dismissed.

4. The corrupting benefits application is dismissed.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

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 1   Act, s.789FC(2); Work Health and Safety Act 2011 (Cth), s.7(1); Bowker & Ors v DP World & Ors [2014] FWCFB 9227

 2   Grabovsky [2021] FWC 5559; Grabovsky [2020] FWC 3164