1
Fair Work Act 2009
s.604—Appeal of decision
Garth Atkinson
v
Killarney Properties Pty Ltd T/A Perm-A-Pleat Schoolwear and
Adrian Palm
(C2015/5122)
Garth Atkinson
v
Killarney Properties Pty Ltd T/A Perm-A-Pleat Schoolwear and
Michael Palm
(C2015/5123)
SENIOR DEPUTY PRESIDENT ACTON
DEPUTY PRESIDENT GOOLEY
COMMISSIONER ROE MELBOURNE, 14 OCTOBER 2015
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 appeals1 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 decision4 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.
[2015] FWCFB 6503
DECISION
E AUSTRALIA FairWork Commission
[2015] FWCFB 6503
2
[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.
[2015] FWCFB 6503
3
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:
[2015] FWCFB 6503
4
(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.
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[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.
[2015] FWCFB 6503
6
[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”.
[2015] FWCFB 6503
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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 decisions10 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.
[2015] FWCFB 6503
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[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
[2015] FWCFB 6503
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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.
[2015] FWCFB 6503
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[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
F THE FAIR WOR AU TRALL OMMISSION SE SEAN THE
[2015] FWCFB 6503
11
Final Written submissions:
Appellant, 29 September 2015.
Respondents, 22 September 2015.
Printed by authority of the Commonwealth Government Printer
Price code C, PR572102
End notes:
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.
