DECISION

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

Duncan Manderson
(AB2015/472)

Application for an FWC order to stop bullying – owner/manager employed by property services company – services provided to bodies corporate associated with residential and short-term accommodation resort – preliminary jurisdictional issues – whether applicant was a worker – whether alleged conduct took place when applicant was at work in a constitutionally-covered business – whether respondent parties properly cited – applicant employed by a legal person conducing a business or undertaking – employer is also a trading corporation – applicant is a worker – not necessary to determine the status of the bodies corporate for present purposes – respondent parties are properly included subject to further consideration – matter to be listed for hearing.

1. Background and case outline

[1] Mr Manderson (the Applicant) has applied for an FWC order under s.789FC of the Fair Work Act 2009 (the FW Act) to stop bullying arising from alleged conduct by five people who have been named in the application. It is not presently necessary to identify these people and I will describe them as the “individuals named”. All of these parties are associated with the Xanadu Resort on the Gold Coast in Queensland and/or two Bodies Corporate; namely those established in relation to Xanadu East and Xanadu North (the individuals named and the Bodies Corporate are collectively described in this decision as being the respondent parties).

[2] The Xanadu Resort provides luxury, self-contained, beach front holiday and residential accommodation.

[3] Mr Manderson is a Shareholder/Director and employee of XMR Holdings Limited t/a Xanadu Resort (XMR), which has a contract to provide caretaking and letting services to the Bodies Corporate. That contract has apparently been subject to a disputed termination initiated by the Bodies Corporate. In that regard, I note that the termination of the contract is being disputed by XMR before the Queensland Civil and Administrative Tribunal (QCAT) under the Body Corporate and Community Management Act 1997 (Qld) (the BCCM Act). Proceedings are due to be conducted in that matter during 2016 however in the interim, the contract between XMR and the Bodies Corporate remains on foot.

[4] Mr Manderson, and all of the individual parties, are also either residents and/or owners of properties forming part of the Xanadu Resort.

[5] The general nature of the alleged conduct outlined in the application involves:

● Ongoing use of threatening, intimidating and derogatory language, allegedly used by all individuals named;
● Shouting and otherwise abusive language, again allegedly a behaviour of all individuals named; and
● Threats of violence and other actions including allegedly grabbing or snatching at the applicant’s property, by at least one of the individuals named.

[6] These are said to have occurred at various times and locations in the course of Mr Manderson’s duties including during his attendance at committee meetings of the Bodies Corporate and in the course of other interactions occurring within the Resort complex.

[7] The respondent parties have made various counter allegations including that Mr Manderson and his staff have consistently failed in their caretaking responsibilities and that the applicant uses derogatory language and engages in otherwise inappropriate behaviour towards the residents.

[8] There is a fundamental dispute about the alleged conduct cited in the application and the counter allegations that have been made by the respondent parties. For reasons outlined below, these substantive issues will not be determined by the Commission at this stage.

[9] As a result of discussions during the course of a directions conference conducted by the Commission, the following preliminary jurisdictional issues were identified:

● Whether the applicant was/is a worker within the meaning of the FW Act;
● Whether the relevant workplace(s) where the alleged conduct took place involve a constitutionally-covered business as defined by the FW Act and whether the alleged conduct took place whilst the applicant was at work in such a business; and
● Whether the bodies corporate and/or all or some of the individuals named are properly cited as parties to this application?

[10] These matters are related and arise from relevant provisions of the FW Act that must be satisfied in order for this application to fall within the jurisdiction of the Commission.

[11] It has been agreed that the Commission should deal initially with the preliminary jurisdictional issues, if possible, on the basis of written submissions and evidence. A number of additional issues also emerged from the written submissions and material provided by the parties including one associated with the ownership status of XMR.

[12] As will become clear, given the positions that have ultimately been advanced and the operation of the FW Act, it has become necessary to seek further submissions and evidence from the parties on a number of issues arising in this matter.

2. The positions of the parties

2.1 Mr Manderson

[13] Mr Manderson relevantly contends as follows:

● Himself and his wife are both employees of XMR and perform the duties of onsite managers at the Xanadu Resort and live at the complex;
● XMR also employs other staff to assist in the caretaking and letting services which they supply under contracts with the Bodies Corporate;
● The Bodies Corporate also engage other contractors to provide a range of services; and
● The letting services provide accommodation for approximately 7000 short term guests staying at the Xanadu complex, which also has major resort style facilities that are shared amongst the residential owners and the short term guests.

[14] Mr Manderson further contends that:

● He is a worker as defined under the FW Act;
● The Bodies Corporate are constitutionally-covered workplaces in that they are conducting a business or undertaking; and
● The common areas where employees of XMR carry out their duties under the caretaking and letting agreement is the workplace for the staff of XMR, including Mr Manderson.

[15] In relation to the identification of the respondent parties, Mr Manderson contends, in effect, that they include both members of the Bodies Corporate, which I understand to be a reference to them being members of the management committee, and other residents, all of whom are individuals whose alleged conduct forms the basis of the application.

[16] Mr Manderson provided an affidavit going to the factual issues.

2.2 The Bodies Corporate

[17] The positions of the Bodies Corporate are generally consistent with those advanced by the individuals named and I note that some of the individuals are committee members. The matters addressed in the materials filed on behalf of the Bodies Corporate include the following contentions:

● All of the “Lot” owners are members of the Bodies Corporate, however, some are elected members of the committees. These committee members are all volunteer workers who do not receive any reward or remuneration other than potentially an honorarium;
● The Bodies Corporate engage a management service, Body Corporate Services, to manage its services including levy collection, payments, insurance and other management services – and this should not be considered to be a contractor arrangement;
● The Bodies Corporate have no involvement in any letting or business activities and do not conduct a business for profit or gain; and
● The Bodies Corporate do not employ Mr Manderson, rather they have a contract with XMR and it is that body which is responsible for the health and safety of the applicant.

[18] On the basis of the above contentions, the Bodies Corporate assert that they are not conducting a business or undertaking and this means that Mr Manderson is not a worker for present purposes.

[19] The Bodies Corporate, and the relevant individuals, also contend that it is not permissible for the applicant to seek to impose a “civil liability” upon committee members given the operation of s.101A of the BCCM Act.

[20] In addition, the Bodies Corporate contend that they are not a constitutionally-covered business. Although the basis of that position is not clearly set out in the written material, I do note that it is correctly contended that they are not undertaking functions in a Territory or Commonwealth place. I apprehend that the broader contention is based upon the notion that they are not conducting a business or undertaking and are not operating under Commonwealth laws.

[21] Further, it is contended that none of the individuals have breached the by-laws of the relevant Body Corporate and as a result, these bodies have no role to play in controlling the behaviour of the individual residents.

[22] As a result, it is contended that the Bodies Corporate are not properly considered to be parties to this application and that the application is outside of the Commission’s jurisdiction and should be dismissed.

[23] An affidavit was provided on behalf of each of the Bodies Corporate.

2.3 The individuals named

[24] Each of the individuals named filed a written submission and/or affidavit material. There are different matters advanced, and some had helpfully obtained legal assistance in that regard. Their circumstances include one the following:

● Owners and residents of properties at the Xanadu Resort who hold no position as a member of the committee of one or other of the Bodies Corporate;
● Owners and residents of properties at the Xanadu Resort who hold a position as a member of the committee of one or other of the Bodies Corporate; or
● An owner who is or was a member of the committee of one of the Bodies Corporate but does not reside at the Xanadu Resort and only visits occasionally.

[25] In each case, the individuals named have no contractual relationship with Mr Manderson.

[26] The individuals also contend that Mr Manderson does not attend committee meeting as a worker but rather as a representative of XMR and that they have little, if any, contact with the applicant.

[27] On the basis of the above, it is contended that there is no jurisdiction for the Commission to deal with the application and in any event, they should not be considered to be parties.

2.4 Observation on some of the issues raised

[28] I note that some of the positions advanced by the parties include a number of issues that were not identified in the directions made by the Commission. These include whether the applicant reasonably believed he had been bullied at work and whether there was any actual unreasonable conduct by the individuals named. I have not dealt with these matters given that they are beyond the scope of the original proceedings and some of these go to the substantive merit of the application. Some of the issues were also raised in reply submissions after Mr Manderson had lodged his materials. This does not mean that these issues are without merit, but rather, they may need to be determined in due course.

[29] There are also a number of disputes concerning the percentage of owners who place their properties into the short term rental accommodation pool and the practicality of certain interim measures apparently sought by Mr Manderson to avoid contact with some of the other parties. There is also a more significant immediate dispute about the status of the business of XMR and the indication that it may have been sold. This is a potentially significant matter however it is not appropriate to attempt to resolve this, and the other additional disputes, without a proper process and an opportunity for all parties to provide evidence and submissions dealing with those matters. I will return to this aspect at the conclusion of this decision.

[30] I should also observe, without intending any criticism, that each of the parties have tended to conflate some of the various elements of the jurisdictional issues in advancing their respective positions.

3. Is Mr Manderson a worker within the meaning of the Act?

[31] Section 789FC of the FW Act provides as follows:

“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.

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.

(3) The application must be accompanied by any fee prescribed by the regulations.

(4) The regulations may prescribe:

(a) a fee for making an application to the FWC under this section; and

(b) a method for indexing the fee; and

(c) the circumstances in which all or part of the fee may be waived or refunded.”

[32] Accordingly, the term “worker” is defined by s.789FC of the FW Act and this provides that “worker” has the same meaning as in the Work Health and Safety Act 2011 (WHS Act), but does not include a member of the Defence Force. In general terms, the WHS Act provides that a worker is a person who carries out work in any capacity for a person conducting a business or undertaking, including any of the following:

• an employee
• a contractor or subcontractor
• an employee of a contractor or subcontractor
• an employee of a labour hire company who has been assigned to work in the person’s business or undertaking
• an outworker
• an apprentice or trainee
• a student gaining work experience
• a volunteer—except a person volunteering with a wholly ‘volunteer association’ with no employees (whether incorporated or not).

[33] The coverage of workers in the present context therefore requires consideration of the concept of “a person conducting a business or undertaking” (PCBU) which is provided by Section 5 of the WHS Act in the following terms:

“(1) For the purposes of this Act, a person conducts a business or undertaking:

(a) whether the person conducts the business or undertaking alone or with others; and
(b) whether or not the business or undertaking is conducted for profit or gain.

(2)  A business or undertaking conducted by a person includes a business or undertaking conducted by a partnership or an unincorporated association.

(3)  If a business or undertaking is conducted by a partnership (other than an incorporated partnership), a reference in this Act to a person conducting the business or undertaking is to be read as a reference to each partner in the partnership.

(4) A person does not conduct a business or undertaking to the extent that the person is engaged solely as a worker in, or as an officer of, that business or undertaking.

(5) An elected member of a local authority does not in that capacity conduct a business or undertaking.

(6) The regulations may specify the circumstances in which a person may be taken not to be a person who conducts a business or undertaking for the purposes of this Act or any provision of this Act.

(7)  A volunteer association does not conduct a business or undertaking for the purposes of this Act.

(8) In this section, volunteer association means a group of volunteers working together for 1 or more community purposes where none of the volunteers, whether alone or jointly with any other volunteers, employs any person to carry out work for the volunteer association.

[34] Regulation 7 of the Workplace Health and Safety Regulations 2011 relevantly provides as follows:

“(1) For subsection 5(6) of the Act, a strata title body corporate that is responsible for any common areas used only for residential purposes may be taken not to be a person conducting a business or undertaking in relation to those premises.

(2) Subregulation (1) does not apply if the strata title body corporate engages any worker as an employee.

(3) For subsection 5 (6) of the Act, an incorporated association may be taken not to be a person conducting a business or undertaking if the incorporated association consists of a group of volunteers working together for one or more community purposes where:

(a) the incorporated association, either alone or jointly with any other similar incorporated association, does not employ any person to carry out work for the incorporated association; and
(b) none of the volunteers, whether alone or jointly with any other volunteers, employs any person to carry out work for the incorporated association.

(4) In this regulation:

strata title body corporate means an body that is a strata title body corporate in accordance with regulations made under a corresponding WHS law.”

[35] The term “corresponding WHS law” is defined in regulation 6A to include the regulations themselves and relevant State-based legislation. In Queensland, this includes the Workplace Health and Safety Act 1995 (Qld) and an instrument made under that Act.

[36] The relevant Queensland regulations adopt the following additional definition:

“strata title body corporate means a body corporate under—

(a) the Body Corporate and Community Management Act 1997, schedule 6; or
(b) the Integrated Resort Development Act 1987, schedule 3, section 1; or
(c) the Mixed Use Development Act 1993; or
(d) the Registration of Plans (H.S.P. (Nominees) Pty. Limited) Enabling Act 1980; or
(e) the Registration of Plans (Stage 2) (H.S.P. (Nominees) Pty. Limited) Enabling Act 1984; or
(f) the Sanctuary Cove Resort Act 1985, schedule 3, section 1.”

[37] It is at least conceivable that the circumstances of both XMR and the Bodies Corporate are relevant here.

[38] What is clear based upon the evidence 1 is that XMR employs workers in addition to Mr Manderson. That is, XMR is not “a person” where (Mr Manderson) is engaged solely as a worker in, or as an officer of, that business or undertaking, so as to be excluded by virtue of s.5(4) of the WHS Act. XMR is also in all other respects a (legal) “person” conducting a business. This means that XMR is a PCBU within the meaning of the WHS Act, and by implication, the FW Act.

[39] As Mr Manderson is engaged by XMR as an employed director, he is a worker within the meaning of the FW Act. That is, he is an employee of a PCBU.

[40] On that basis, it is not necessary at this point to determine whether the Bodies Corporate are a PCBU or whether Mr Manderson is an employee of a contractor in that context.

[41] Accordingly, I am satisfied that Mr Manerson is, and was, a worker for present purposes.

4. Was Mr Manderson at work in a constitutionally-covered business?

[42] A further requirement for this application to proceed is that the alleged behaviour must have taken place whilst the applicant was at work in a constitutionally-covered business. This arises from s.789FD of the FW Act, which 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;

then the business or undertaking is a constitutionally-covered business.

[43] The expression ‘at work’ is not defined in the legislation. The same expression is used in relation to the primary duty of care in s.19 of the WHS Act. The Explanatory Memorandum for that Act states that ‘the primary duty of care is tied to the work activities wherever they occur and is not limited to the confines of a physical workplace.’ 2

[44] In general terms, this means that a ‘worker’ is an individual who carries out work in any capacity for a person conducting a business or undertaking, including as an employee; a contractor or subcontractor; an outworker; an apprentice or trainee; a student gaining work experience, or a volunteer. 3 Further, an employee may be ‘at work’ even if required by the employer to perform work at a place other than the employer’s premises, such as in the case of an employee of a labour hire business.4

[45] For the worker to be considered to be ‘at work’, the alleged bullying may not necessarily have to occur while the worker is actively engaged in work. The phrase has temporal connotations, and applies equally to all kinds of work, and includes entering, moving about and leaving a workplace. 5 It is a broader phrase than ‘at the employer’s place of work’.6

[46] In Bowker and Others v DP World Melbourne Limited T/A DP World and Others 7 (Bowker) a Full Bench of the Commission determined:

“[48] We have concluded that the legal meaning of the expression ‘while the worker is at work’ certainly encompasses the circumstance in which the alleged bullying conduct (ie the repeated unreasonable behaviour) occurs at a time when the worker is ‘performing work’. Further, being ‘at work’ is not limited to the confines of a physical workplace. A worker will be ‘at work’ at any time the worker performs work, regardless of his or her location or the time of day. As we have mentioned, the focal point of the definition is on the worker (ie the applicant). The individual(s) who engage in the unreasonable behaviour towards the worker need not be ‘at work’ at the time they engage in that behaviour.

[49] While a worker performing work will be ‘at work’ that is not an exhaustive exposition of the circumstances in which a worker may be held to be at work within the meaning of s.789FD(1)(a). For example, it was common ground at the hearing of this matter that a worker will be ‘at work’ while on an authorised meal break at the workplace and we agree with that proposition. But while a worker is on such a meal break he or she is not performing work. Indeed by definition they are on a break from the performance of work. It is unnecessary for us to determine whether the provisions apply in circumstances where a meal break is taken outside the workplace.

[50] In our view an approach which equates the meaning of ‘at work’ to the performance of work is inapt to encompass the range of circumstances in which a worker may be said to be ‘at work’.

[51] It seems to us that the concept of being ‘at work’ encompasses both the performance of work (at any time or location) and when the worker is engaged in some other activity which is authorised or permitted by their employer, or in the case of a contractor their principal (such as being on a meal break or accessing social media while performing work).”

[47] At this point, I have not heard evidence about the detail of the alleged conduct or the various counter allegations. Based upon the present indications, if the conduct alleged in the application occurred, it would have been whilst Mr Manderson was at work. This may however need to be revisited based upon the evidence provided in subsequent proceedings.

[48] What is clear is that approach adopted by the Full Bench in Bowker means that the determination as to whether Mr Manderson was at work in a constitutionally-covered business is likely to involve consideration of the business in which he was employed or engaged and not simply the location where the alleged conduct took place.

[49] This means that it is primarily the circumstances of the XMR that must be considered.

[50] In order to be a constitutionally-covered business, it is necessary that the business be a PCBU and that it fall within the scope of s.789FD(3) of the FW Act. I have already found that XMR is a PCBU.

[51] The parties are located in Queensland and the workplace would not fall within the scope of s.789FD(3)(a)(ii), (iii), (iv) or (b). Accordingly, in order to fall within the scope of s.789FD(3) of the FW Act, the relevant business must be a constitutional corporation.

[52] 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.”

[53] The Constitution, in effect, defines “constitutional corporations” as follows:

“Foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth.” 8

[54] It is reasonably clear that none of the corporations here would be considered to be a foreign or financial corporation for present purposes. Accordingly, it is necessary that the corporations be trading corporation.

[55] The approach of the Courts and Tribunals to the meaning of a trading corporation has been conveniently summarised by Steytler P in Aboriginal Legal Service (WA) Inc v Lawrence (No 2.)⁹ (Lawrence). Having reviewed the developments in the approach of the High Court to arrive at what might be described as the activities test, His Honour found as follows (footnotes and references omitted):

“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 (239); State Superannuation Board (303 - 304); Tasmanian Dam case (156, 240, 293); Quickenden [49] - [51], [101]; Hardeman [18].

(2) However, trading must be a substantial and not merely a peripheral activity: Adamson (208, 234, 239); State Superannuation Board (303 - 304); Hughes v Western Australian Cricket Association Inc [1986] FCA 357; (1986) 19 FCR 10, 20; Fencott (622); Tasmanian Dam case (156, 240, 293); Mid Density (584); Hardeman [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 (139, 159 - 160); Adamson (235); Actors and Announcers Equity Association of Australia v Fontana Films Pty Ltd [1982] HCA 23; (1982) 150 CLR 169, 184 - 185, 203; Bevanere Pty Ltd v Lubidineuse [1985] FCA 134; (1985) 7 FCR 325, 330; Quickenden [101].

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

(5) The ends which a corporation seeks to serve by trading are irrelevant to its description: St George County Council (543, 569); Ku-ring-gai (160); State Superannuation Board (304 - 306); E (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 (543) (Barwick CJ); Tasmanian Dam case (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 (234) (Mason J); State Superannuation Board (304); Fencott (589); Quickenden [52], [101]; Mid Density (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 (294 - 295, 304 - 305); Fencott (588 - 589, 602, 611, 622 - 624); Hughes (20); Quickenden [101]; E (344); Hardeman [18].

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

[56] This summary was adopted by the Full Court of the Federal Court in Bankstown Handicapped Children’s Centre v Hillman. 10

[57] In my view, XMR would clearly be a trading corporation. It is incorporated and is involved with the provision of accommodation and letting services and is engaged to provide what are clearly commercial services. These are significant trading and business activities carried on with a view to earning revenue.

[58] On that basis, and subject to future factual findings to the contrary, I am satisfied that Mr Manderson was at work in a constitutionally-covered business at the relevant times. That is, it is the business of XMR that provides the necessary jurisdiction in this case.

[59] I also note that it appears not to be in dispute that Mr Manderson, and the other employees of XMR, have access as part of their work to the various common areas within the Xanadu Resort and that the reception, which is conducted by that business, is located in the East Building. This may have implications for the merit of the application but this does mean, to the extent that it is necessary, that the workplace for Mr Manderson includes relevant parts of the Resort Complex in which the Bodies Corporate may have an interest.

[60] Given the above, I do not need to deal, at present, with the status of the Bodies Corporate. There is an issue as to whether these bodies would be considered to be a PCBU. It is not in dispute that the Bodies Corporate are both “bodies corporate” under the BCCM Act. However, the issue would be whether they are a “strata title body corporate” within the meaning of the WHS Act and regulations (regulation 7(1) and (2)) including whether they are responsible for any common areas used only for residential purposes and whether they engage any worker as an employee. I note in that regard that it is apparently accepted that there are common areas within the resort that are available to both residents and short-term guests. 11

[61] It is also not necessary to determine, for immediate purposes, whether the Bodies Corporate are a wholly volunteer association (s.5(8) and regulation (3)). In that regard, I would also note that although the Bodies Corporate may involve only volunteers, they are unlikely to be considered to be conducted for a “public purpose” as contemplated by the relevant regulations.

[62] I also do not have sufficient material to determine whether the Bodies Corporate would be considered to be trading corporations. If this becomes necessary, the issue can be determined at that point, based upon more direct evidence about the actual activities of the corporations.

[63] For reasons outlined above, I am presently satisfied that Mr Manderson was at work in a constitutionally-covered business at the relevant times.

5. The inclusion of the individuals named and the Bodies Corporate as parties

[64] It is evident that none of the individuals named in the application has any contractual connection with Mr Manderson. That is, the individuals do not employ or engage (in their own right) Mr Manderson in any capacity. The legal relationships exist only between the Bodies Corporate and XMR, and between XMR and Mr Manderson.

[65] In order to appreciate the potential scope of the present application it is necessary to examine the relevant terms of the FW Act, and the definition of bullying conduct, in particular. I have set out the full terms of s.789FD earlier in this decision. The focus of the definition is upon the behaviour of individuals or groups of individuals, whilst the applicant worker is at work. This arises from s.789FD(1)(a) of the FW Act.

[66] The use of the expression “individual”, rather than “worker”, is consistent with the intention of the Act that unreasonable behaviour by natural persons who are in the workplace in any capacity, can constitute bullying conduct.

[67] The Full Bench in Bowker said as follows:

“[31] It is important to appreciate that the definition of ‘bullied at work’ includes the requirement that an individual or group of individuals ‘repeatedly behaves unreasonably towards the worker [ie the applicant], or a group of workers of which the worker is a member’ (see s.789FD(a)(i) and (ii)). The individuals engaging in the unreasonable behaviour need not be workers, for example they could be customers of the business or undertaking in which the applicant works. Nor do the relevant statutory provisions contain any requirement for these individual(s) to be ‘at work’ at the time they engage in the unreasonable behaviour which the applicant contends constitutes bullying.”

[68] This means that, subject to findings about whether the actual alleged conduct took place, the individuals named are properly included as parties to this particular application.

[69] It is also clear that the Bodies Corporate do not have a direct contractual relationship with Mr Manderson as a worker. These bodies do however have some responsibilities for the operations of the Xanadu Resort and the resort is the location where the workplace is to be found. They are therefore relevant to this application.

[70] I appreciate that there may be very limited capacity for the Bodies Corporate to control or manage the conduct of the residents 12 and this is likely to be relevant as to the form and nature of any orders that might be ultimately considered in that regard.

[71] However, this does not mean that the Bodies Corporate are improperly identified as parties to the proceedings at least at this stage.

6. Other issues raised by the parties

6.1 Civil Liability of the committee members

[72] The respondent parties raised the operation of the BCCM Act and its potential impact upon the application as it involves the committee members of the Bodies Corporate. Section 101A of the BCCA Act provides as follows:

“(1) A committee member is not civilly liable for an act or omission in good faith and without negligence in performing the person’s role as a committee member.”

[73] This matter as raised in final submissions and Mr Manderson has not had the opportunity to be heard on the issue. Accordingly, I have not conclusively dealt with the issue and note that it may well need to be fully addressed in any subsequent proceedings in this matter. I would however make the following observations that might assist all parties in forming their respective positions.

[74] The potential impact of s.101A of the BCCM Act may depend upon the following:

● Whether proceedings and any order made under s.789FC to s.789FF of the FW Act would constitute the imposition of a “civil liability”. The orders made by the Commission do not involve the imposition of any form of civil penalty or findings of individual liability as would be generally understood. I do note however that the breach of any order of the Commission may involve a civil penalty; 13

●Whether any actual conduct found by the Commission was an act or omission in good faith and without negligence and whether it took place in performing the role as a committee member and not only as a resident; and

● Whether the operation of s.101A conflicts with the FW Act and if so, whether the Commonwealth law would prevail, to the extent of that inconsistency. 14

6.3 Whether there has been repeated conduct

[75] The requirement for the unreasonable behaviour to be repeated arises from the definition of a worker being bullied at work as provided by s.789FD of the FW Act. This provision has been set out earlier in this decision.

[76] One or more of the respondent parties have referred to the fact that in their particular case, only one alleged incident has been cited by Mr Manderson in the application. At this stage, the Commission has not sought detailed evidence about the actual alleged conduct or the various counter allegations. However, the following observations may be of assistance.

[77] In Harpreet Singh 15 I dealt with the implications of the need for the unreasonable behaviour to be repeated in matters dealt with in this jurisdiction a follows:

“[19] As is clear from the above, for the behaviour to be ‘repeated unreasonable behaviour’ it cannot be a single occurrence. The definition implies the existence of persistent unreasonable behaviour but might refer to a range of behaviours over time. That behaviour may also be undertaken by an individual or a group of individuals and be directed towards the applicant worker or a group of workers to which the applicant belongs. The unreasonable behaviour must however be repeated.

[20] The definition in s.789FD(1) must also be read conjunctively. That is, the requirements in both ss.(1)(a) and ss.(1)(b) must both be satisfied. This arises because of the construction of the provision and the “and” which links both subsections. This is also the evident intention of the provision.

[21] This means that the Commission must be satisfied that there was conduct whereby an individual (or a group of individuals) has repeatedly behaved unreasonably towards the worker, or a group of workers of which the worker is a member, and that this behaviour created a risk to health and safety.”

[78] On that basis, repeated unreasonable conduct for the purposes of demonstrating bullying at work may involve a group of individuals and a range of behaviours over time.

[79] Whether this has occurred here, will depend upon the evidence to follow.

6.3 Future Risk

[80] This issue initially featured prominently in the preliminary conference in the context that the contract between XMR and the Bodies Corporate had been terminated. Indeed, the original jurisdictional objection of the Bodies Corporate was that this would mean that Mr Manderson was no longer a worker, and by implication, there was no future risk of any bullying conduct.

[81] However, it became apparent to the Commission that the contract remained on foot, at least on an interim basis, as a result of the proceedings before QCAT outlined at the outset of this decision.

[82] The issue of future risk of unreasonable conduct arises from the provisions of the FW Act which establish the capacity for the Commission to make any orders in applications of this kind.

[83] Section 789FF of the Act provides as follows:

“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.”

[84] It is well established that where there is no risk that the applicant worker will continue to be bullied at work by the individual or group concerned, there is no prospect that the s.789FC application can succeed. 16

[85] In cases where the applicant worker, and/or the individuals or group concerned, are no longer in the workplace, and there is no reasonable prospect of that occurring, it is likely that there will be no relevant future risk.

[86] During the course of this matter three elements have been raised. Two of these elements concern the status of XMR. Those elements, and their capacity to create an issue for the application in terms of the potential absence of future risk, are as follows:

● The termination of the contracts between XMR and the Bodies Corporate – if the termination is ultimately upheld by QCAT, and Mr Manderson no longer attends the Xanadu Resort as a worker; and/or
● The sale of the business - if the business has been, or is, sold (this is alleged by the respondent parties and denied by Mr Manderson on the basis that a potential sale has fallen through) and Mr Manderson no longer attends the Xanadu Resort as a worker; then
● The respondent parties position on this issue may well have substance.

[87] The other issue raised in this regard by at least one of the respondent parties is that since the application, there has been little or no contact between some of them and Mr Manderson. It is evident from the positions advanced that all parties are seeking to avoid one another.

[88] Subject to the consideration of evidence about the actual conduct and the capacity for parties to have future interactions, at this point I cannot currently conclude that there would be no risk of relevant unreasonable conduct occurring in the future on this basis.

7. Conclusions and further proceedings

[89] Based upon the issues that I have determined to this point, there is no barrier to this application being further considered by the Commission. I have not however made any decision to this point about the actual alleged conduct or the various counter allegations. As a result, I have also not determined whether the application has merit or if there is any basis for orders to be made.

[90] It is appropriate and necessary for the Commission to hear evidence about these matters and to further consider a number of the other issues which have been outlined in this decision.

[91] I consider that given the circumstances of the parties, any further proceedings should be conducted in person. To that end, I will assign this application to a Member to hear and determine the substantive application.

[92] Liberty to apply is granted to all parties, including in the event that the potential developments outlined in 6.3 of this decision occur.

COMMISSIONER

Preliminary conference details:

By Telephone

2015

8 October.

Written submissions:

Respondent parties:

30 October,

2, 3 and 23 November.

Applicant:

18 November 2015.

 1   Affidavit of Mr Manderson, dated 18 November 2015.

 2   Explanatory Memorandum, Workplace Health and Safety Bill 2011, [22]; cited in Bowker and Others v DP World Melbourne Limited T/A DP World and Others [2014] FWCFB 9227.

 3   Bowker and Others v DP World Melbourne Limited T/A DP World and Others [2014] FWCFB 9227 at [30].

 4   See: Petar Ankucic v Drake Personnel Limited, t/as Drake [1997] NSWIRComm 157.

 5   Clarke v WL Meinhardt and Partners Pty Ltd (unreported, NSW Industrial Court, Fisher CJ, 30 June 1992); followed in Workcover Authority of NSW (Inspector Farrell) v Ross Colin Morrison [2001] NSWIRComm 325 at [50].

 6   Inspector Campbell v James Gordon Hitchcock [2004] NSWIRComm 87, 135 IR 377 at 301.

 7   [2014] FWCFB 9227.

 8   Australian Constitution s.52(i).

9 (2008) 252 ALR 136 at par [68].

 10   (2010) 182 FCR 483 at par [48].

 11   Statement provided on behalf of Xanadu East Committee.

 12   Affidavit of the Chair of the Body Corporate for Xanadu North.

 13   S.789FG of the FW Act.

 14   S.109 of the Australian Constitution.

 15   [2015] FWC 5850.

 16   See the discussion of the earlier authorities in Bassanese [2015] FWC 3515 and the most recent decision of the Full bench in Atkinson v Killarney Properties Pty Ltd [2015] FWCFB 6503.

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