1
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
Shoshana Amzalak
(AB2016/493)
COMMISSIONER HAMPTON ADELAIDE, 27 SEPTEMBER 2016
Application for an FWC order to stop bullying – State government school – workplace
conducted by State government department under the terms of State legislation – identity of
the employer – scope of anti-bullying jurisdiction discussed – relevance of national system
employer – whether powers referred to Commonwealth – whether workplace is
constitutionally-covered – not conducted by the Commonwealth or in a Territory - whether
trading or financial corporation – not a corporation – no jurisdiction – application dismissed.
1. Background and case outline
[1] Ms Shoshana Amzalak has made an application under s.789FC of the Fair Work Act
2009 (the FW Act) for an order to stop bullying conduct she alleges has taken, and may in the
future take place, within her workplace. At the time of the application, Ms Amzalak was a
teacher employed to work at a Victorian Government School; being a secondary college
conducted by the Department of Education and Training (Victoria) (the Department) under
the Education and Training Reform Act 2006 (Vic) (The Victorian Education Act).
[2] Although it is not ultimately critical in this matter, it is apparent that Ms Amzalak’s
employer is, or was, the Secretary of the Department.1
[3] The Department contends that this application should be dismissed on three principal
grounds; namely:
The school at which Ms Almazak is engaged to work is a Victorian Government
School, conducted by the Department on behalf of the State of Victoria, and as such,
is not a ‘constitutionally-covered business’ for the purposes of Part 6-4B of the FW
Act – the constitutionally-covered issue.
The State of Victoria has not referred the power to make laws with respect to
workplace bullying to the Commonwealth, and since the Respondent is not a
constitutional corporation, Part 6-4B of the FW Act has no application to it – the
referral of powers issue.
Ms Almazak’s employment was terminated on 23 August 2016, with the
consequence that the Fair Work Commission no longer has the capacity to make an
[2016] FWC 6590
DECISION
E AUSTRALIA FairWork Commission
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order under s.789FF of the FW Act in relation to the alleged bullying of the
Applicant – the future risk issue.2
[4] Ms Amzalak contends that the Department is her employer and, in effect, that it
conducts a constitutionally-covered workplace within the meaning of the FW Act. In general
terms, she contends that:
The Department, through the actions, words and behaviour of the Secondary
College concerned (including its Principal and Governing Council) has in
numerous ways held itself out to be a corporation;
The activities of the Department represent relevant trading activities and these
comprise well in excess of 15% of its overall activities based upon material
provided in a recent Annual Report; and
The Department is accordingly a trading corporation captured by Part 6-4B of the
FW Act.3
[5] Ms Amzalak also referenced the capacity for the FW Act to extend to State public
sector employees given s.30A of that Act. I understand that this raises, at least indirectly, the
referral of powers issue outlined by the Department above.
[6] In terms of the future risk issue, Ms Amzalak contends that the Department is a large
State entity with multiple employment options and this should be distinguished from a small
private sector operation. Further, the applicant has indicated that she was intending to pursue
an unfair dismissal application4 and that it would not be appropriate to dismiss her anti-
bullying application in that light.
[7] The parties agreed that I should determine the Department’s objections based upon
written submissions and evidence. Given the nature of the issues and the absence of disputed
facts directly relevant to the jurisdictional matter, I have done so.
2. The coverage of the anti-bullying provisions of the FW Act
[8] The coverage of this Part of the FW Act was extensively dealt with in Ms SW5 and
later in A.B.6 Without repeating all of that consideration and findings, the following is
apposite to this matter.
[9] A significant portion of the FW Act relies upon the definition of “national system
employee” and “national system employer” in ss.13 and 14 respectively. In States that have
made referrals of certain powers to the Commonwealth,7 that definition is extended by virtue
of ss.30C, 30D, 30M and 30N to include other parties in the relevant State.
[10] Victoria is a referring State and the extended definition of national system parties
applies in that State. I also note in that regard that the reference to “State public sector
employee” in s.30A of the FW Act, is relevant to Victoria as a State that referred industrial
powers to the Commonwealth prior to 1 July 2009. However, for reasons that will become
clear, these concepts are not relevant to the coverage of the anti-bullying provisions of the
FW Act.
[11] Section 37 of the FW Act provides as follows:
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“37 Act binds Crown
(1) This Act binds the Crown in each of its capacities.
(2) However, this Act does not make the Crown liable to be prosecuted for an
offence.”
[12] This provision establishes the capacity of the FW Act to bind and apply to the Crown
in its various capacities. Whether the various provisions of the FW Act apply to those various
capacities depends upon how the coverage of those provisions is expressed. This follows
because various parts of the FW Act are specified to apply to different parties. This includes,
in most cases, reference to national system parties, whereas in other parts of the FW Act, a
different basis for the coverage is stated.
[13] Importantly, the coverage of the anti-bullying provisions in Part 6-4B of the FW Act is
not based upon the definition of national system parties, the coverage of the Crown or the
referral of powers by most States including Victoria. This is evident from the express terms of
the FW Act discussed below.
[14] In order for the anti-bullying jurisdiction to be engaged, the Commission must find
that a worker has been bullied at work within the meaning of the FW Act. Section 789FD is in
the following terms:
“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;
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then the business or undertaking is a constitutionally-covered business.”
[15] The initial focus of the definition is the workplace where the applicant is at work when
the alleged unreasonable conduct takes place. That is, the conduct must take place whilst the
worker is at work in a constitutionally-covered business. Section 789FD(3) requires the
Commission to consider the nature, or in some cases – the location, of the legal person
conducting the business or undertaking.
[16] In this case, the workplace is a Victorian public school. There is no suggestion of any
other (corporate) entity employing in, or more importantly conducting the “business” of, the
school.
[17] The workplace in this matter is not located in a Territory8 and there is no suggestion
that it is conducted by the Commonwealth or a Commonwealth authority. Assuming for
present purposes that the workplace is a business or undertaking within the meaning of the
Work Health and Safety Act 2011 (Cth), in order to be a constitutionally-covered business and
fall within the scope of s.789FD, it must be conducted by a constitutional corporation.
[18] In that light, it is not strictly necessary to deal with the referral of powers issue.
However as it was, at least indirectly, raised by Ms Amzalak, I would observe as follows.
[19] Division 2A of Part 1-3 of the FW Act deals with the application of the FW Act in
States that referred matters before 1 July 2009. Victoria is the only state that is subject to this
Division. Section 30H provides that a provision of Division 2A:
“…has effect in relation to a State that is a referring State because of this Division
only to the extent that the State’s referral law refers to the Parliament of the
Commonwealth matters mentioned in subsection 30B(1) that result in the Parliament
of the Commonwealth having sufficient legislative power for the provision so to have
effect.”
[20] The most recent iteration of Victoria’s referral law is the Fair Work (Commonwealth
Powers) Act 2009 (Vic) (the Victorian Referral Act). Section 4 of the Victorian Referral Act
sets out the matters referred to the Commonwealth. Section 4(1)(b) deals with Victoria’s
referral to the Commonwealth of matters which can be the subject of amendments to the
FW Act (which rely upon and apply in consequence of that referral) and these are described
as the “referred subject matters”.
[21] “Referred subject matters” is defined in s.3(1) of the Victorian Referral Act in the
following terms:
"referred subject matters" means any of the following—
(a) terms and conditions of employment including any of the following—
(i) minimum terms and conditions of employment (including employment
standards and minimum wages);
(ii) terms and conditions of employment contained in instruments (including
instruments such as awards, determinations and enterprise‑ level
agreements);
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(iii) bargaining in relation to terms and conditions of employment;
(iv) the effect of transfer of business on terms and conditions of employment;
(b) terms and conditions under which an outworker entity may arrange for work to
be performed for the entity (directly or indirectly), if the work is of a kind that
is often performed by outworkers;
(c) rights and responsibilities of persons, including employees, employers,
independent contractors, outworkers, outworker entities, associations of
employees or associations of employers, being rights and responsibilities
relating to any of the following—
(i) freedom of association in the context of workplace relations, and related
protections;
(ii) protection from discrimination relating to employment;
(iii) termination of employment;
(iv) industrial action;
(v) protection from payment of fees for services related to bargaining;
(vi) sham independent contractor arrangements;
(vii) standing down employees without pay;
(viii) union rights of entry and rights of access to records;
(d) compliance with, and enforcement of, the Commonwealth Fair Work Act ;
(e) the administration of the Commonwealth Fair Work Act;
(f) the application of the Commonwealth Fair Work Act;
(g) matters incidental or ancillary to the operation of the Commonwealth Fair
Work Act or of instruments made or given effect under the Commonwealth
Fair Work Act —
but does not include any excluded subject matter;”
[22] “Excluded subject matter” is defined in s.3(1) of the Referral Act to mean, relevantly,
“a State subject matter”. This, in turn, includes “occupational health and safety”.9
[23] For present purposes, I consider that the anti-bullying provisions in Part 6-4B of the
FW Act would be considered to be an occupational health and safety matter. This arises from
the nature of the provisions, the reliance upon various legislative definitions and concepts
drawn from work health and safety law, and the definition of being ‘bullied at work’, which
requires that the conduct ‘creates a risk to health and safety’.10 I leave aside for present
purposes that some terms and conditions of employment could include elements of
occupational health and safety and these may well fall within the scope of the referred matters
given the breadth of s.3(1) of the Victorian Referral Act. This would not seem to apply to the
anti-bullying provisions, which are not expressed in that form.
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[24] It appears from the above that Part 6-4B of the FW Act contains provisions covering a
subject matter that was not expressly the subject of Victoria’s referral of powers to the
Commonwealth. Part 6-4B was inserted into the FW Act by s.3 and sch.3 of the Fair Work
Amendment Act 2013 (Cth) and postdates the enactment of the Victorian Referral Act. The
Victorian Parliament has not adopted further legislation to expressly refer further powers to
regulate workplace bullying.
[25] Accordingly, it is reasonable to proceed on the basis that Victoria has not referred to
the Commonwealth the power to legislate in relation to workplace bullying above and beyond
the existing Corporations power11 directly provided by the Australian Constitution and relied
upon by the Commonwealth Parliament in enacting the anti-bullying provisions of the FW
Act. In any event, for reasons outlined earlier, Part 6-4B of the FW Act does not rely upon the
broader definition of parties and coverage applicable in some other Parts12 of the legislation.
[26] On this basis, and given the other circumstances operating here, this application will
fall within the scope of the anti-bullying provisions of the FW Act only if, amongst other
requirements, the alleged conduct occurred whilst Ms Amazalak was at work in a
constitutional corporation.
3. Is the relevant workplace conducted by a constitutional
corporation?
[27] The term “constitutional corporation” is defined in s.12 of the FW Act in the following
terms:
“constitutional corporation means a corporation to which paragraph 51(xx) of the
Constitution applies.”
[28] The Australian Constitution, in effect, defines “constitutional corporations” as
follows:
“Foreign corporations, and trading or financial corporations formed within the limits of
the Commonwealth.”13
[29] Of these, Ms Amzalak contends that the Department is a trading corporation. In order
for that to be correct, the “Department” as the entity (person) conducting the workplace, must
be a corporation; that is, an incorporated legal entity of some description.
[30] Based upon all of the material that is before the Commission,14 I find as follows:
The Department is the statutory and administrative creation of the State of Victoria,
and as such is an emanation of the Crown in right of that State;
Ms Amzalak’s employer was the Secretary of the Department (the Secretary) on
behalf of the Crown in right of the State of Victoria, in accordance with
s.2.4.3(1)(a) of the Victorian Education Act;
The Victorian Education Act deals with the law relating to education and training
in Victoria, and relevantly, the establishment and regulation of State government
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schools. A ‘government school’ is defined in s.1.1.3(1) as “a school established by
the Minister and conducted under Part 2.2”;
Under s.5.2.1(c) of the Victorian Education Act, the Minister for Education and
Training (the Minister) has the power to “establish, name, maintain, carry on,
modify, merge or close Government schools”. Further, s.2.4.7 enables the Minister,
by Order, to specify the eligibility criteria for persons employed in the teaching
service and related matters;
The Secretary also exercises various powers under the Victorian Education Act as a
Department Head responsible to the Minister. The Secretary, on behalf of the
Crown, employs teachers in the teaching service and has all the rights, powers,
authorities and duties of an employer in respect of employees in the teaching
service.15 This includes the power to assign work to employees, issue lawful
instructions that must be observed by employees, determine the remunerations and
other terms and conditions of employment of individual employees and terminate
the employment of employees;16
Important aspects of the day to day running of Victorian Government schools have
been delegated by the Minister to School Principals utilising ss.5.10.4 and 5.10.5 of
the Victorian Education Act. This delegation operates subject to the Teaching
Service (Employment, Conditions, Salaries, Allowances, Selection and conduct)
Order 2009 (Order No 199) (the Order); and
The Order invests School Principals with an extensive range of powers including
for the efficient organisation, management and administration of the school, the
allocation of teaching and other duties to employees at the school and ensuring safe
working practices in the school.17 In addition, the Secretary may delegate any of
their powers or functions to any person employed in the administration or
execution of the Victorian Education Act.18 The exercise of these powers is subject
to the control and direction of the Secretary.
[31] Accordingly, the Department, through the Secretary, is the ‘person’ who conducts the
business of Victorian Government schools, including the Secondary College at which
Ms Amzalak worked.
[32] The Department is part of the State of Victoria, and as such is an emanation of the
Crown in right of that State. It is not any kind of incorporated entity. As such, it cannot be a
trading (or financial) corporation. Even if its activities include trading, and the manner in
which it conducts its affairs has a corporate style, that finding must still follow.19
[33] Given that the alleged conduct at the heart of this application cannot be considered to
be bullying conduct within the meaning of s.789FD of the FW Act, there is no jurisdiction for
the Commission to hear and determine this application.
4. Conclusions and orders
[34] Given the above findings it is not necessary that I deal with the future risk issue.
[35] For reasons outlined above, the alleged conduct would not fall within the scope of the
anti-bullying provisions in Part 6-4B of the FW Act. There is no jurisdiction for the
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Commission to deal with this present matter. As a result, this application must be dismissed
and I so order.
COMMISSIONER
Appearances:
M Rose for Shoshana Amzalak.
S Killackey and later J Ivanovski for the Department of Education and Training (Victoria).
Conference details – by phone:
2016
8 August.
Final written submissions:
2016
26 August
12 and 19 September.
Printed by authority of the Commonwealth Government Printer
Price code C, PR585388
1 Section 2.4.3(1)(a) of the Victorian Education Act.
2 Submissions of the Department at par 1.1
3 Submission on behalf of Ms Almazak.
4 Ms Amzalak has apparently very recently lodged an unfair dismissal application under s.394 of the FW Act, however, it has
not yet been considered by the Commission and I make no findings in that regard.
5 [2014] FWC 3288.
6 [2014] FWC 6723.
7 See the Fair Work (State Referral and Consequential and Other Amendments) Act 2009.
8 Western Australia is not a Territory as defined in s.2B of the Acts Interpretation Act 1901, which refers to s.122 of the
Australian Constitution.
9 Section 3(1)(d) of the Victorian Referral Act.
10 Section 789FD(1) of the FW Act.
11 Section 51 (xx) of the Australian Constitution provides, in effect, that the Commonwealth Parliament shall, subject to this
Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to
foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth.
12 Including for example the application of the unfair dismissal jurisdiction in Part 3-2 of the FW Act.
WORK COMMISSION AUSTRALIA THE SEAL OF THE FA
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13 Section 52(xx) of the Australian Constitution.
14 This includes an affidavit of Mr Tony Bugden, Executive Director of the People Division of the Department and the
Department’s Annual report for 2014-15.
15 Section 2.4.3(1)(a) and 2.4.3(2) of the Victorian Education Act.
16 Section 2.4.3(3) of the Victorian Education Act.
17 Clause 11.2.2 of the Order.
18 Clause 12.1.1 of the Order.
19 See Ms SW at [25] in terms of the use of an ABN.
