[2017] FWC 1976
FAIR WORK COMMISSION

DECISION


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

Trevor Yawirki Adamson
(AB2016/662)

COMMISSIONER HAMPTON

SYDNEY, 19 MAY 2017

Application for an FWC order to stop bullying – chairperson of statutory board – jurisdictional objections – whether applicant is a worker and eligible to apply – whether alleged conduct occurred whilst at work – whether application an abuse of process – whether loss of position in subsequent election means no relevant future risk – applicant potentially a worker as chairperson and if so, alleged conduct occurred whilst at work – original application not an abuse of process – applicant no longer a worker as a volunteer or otherwise – no relevant future risk given terms of the legislation – to proceed with application would become an abuse of process – application dismissed.

1. Background and the issues to be determined

[1] Mr Trevor Yawirki Adamson has made an application for a stop bullying order under s.789FC of the Fair Work Act 2009 (the FW Act). Mr Adamson was at the time of making the application, the Chairperson of the Executive Board of the Anangu Pitjantjatjara Yankunytjatjara Inc (APY Inc). His application names two persons, Mr Richard King, General Manager and Mr Bernard Singer, who was at the time of the application, the Deputy Chairperson of the Executive Board and various allegations have been made about their conduct. APY Inc is named in the application and together with Mr King and Mr Singer form the respondent parties.

[2] The Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA) (APY Act) provides for the vesting of title to approximately 100,000 square kilometres of lands in Northern South Australia to the people known as Anangu Pitjantjatjara Yankunytjatjara. The APY Act establishes the Executive Board which consists of elected or appointed members, including a Chairperson and Deputy Chairperson. It also provides for the appointment, by the Executive Board, of a Director of Administration and General Manager. The APY Act also establishes APY Inc as a corporate entity with status, powers and functions. I have referred to the corporate entity as APY Inc to differentiate between that entity and the APY community.

[3] In the responses provided to the application, Mr Singer and Mr King have strongly rejected the allegations made by Mr Adamson and made a number of counter claims about Mr Adamson’s conduct as Chairperson. They have also raised a number of “jurisdictional issues” concerning the capacity of the Commission to hear and determine the application under the anti-bullying provisions in Part 6-4B of the FW Act. These included that:

[4] Following extensive efforts to conciliate the matter, including the issuing of comprehensive recommendations that all parties have accepted at various times, the Commission has resolved to deal with these jurisdictional issues. 1 During the process established to permit the parties to file written submissions and evidence on these jurisdictional issues, another development has occurred which has impacted upon this matter.

[5] On 12 April 2017, the Commission was advised by the respondent parties that an election under the APY Act had been conducted and that Mr Adamson had not been re-elected to the Executive Board. In that light, the respondent parties have applied to dismiss this application on the grounds that there is now no basis to make any order, even if jurisdiction was otherwise to be found. This “future risk” issue arises from the prerequisites for the making of an order under s.789FF of the FW Act, which include that the Commission must be satisfied that the applicant worker is at risk of future workplace bullying in that capacity.

[6] As will become clear, the future risk issue has ultimately become decisive in this matter. It is however necessary to deal with the other issues, at least in part, to set the context for that aspect.

[7] The parties have now filed written submissions and affidavit material, some of which is in dispute, concerning the two original jurisdictional issues and the future risk point. In terms of the factual disputes, it has not been necessary to deal with these due to the nature of the jurisdictional issues being determined at this point and the fact that those disputes fundamentally go to the substantive merit of the application and the responses that have been provided.

[8] Mr Adamson is an Anangu man and an elder of his community. I note that during the course of the earlier proceedings, and in the making of submissions leading to this decision, Mr Adamson was assisted by Mr Brouss Chambers, who strongly advocated on his behalf. I note also that submissions were advanced in this matter on behalf of the respondent parties by Mr Harbord of Johnston Withers. 2

2. The operation of the Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA)

[9] Each of the issues to be determined in this decision require an understanding of the operation of the APY Act. This sets the relationships between the parties and the context for much of the application.

[10] The Anangu Pitjantjatjara Yankunytjatjara Land Rights (Miscellaneous) Amendment Act 2016 (SA) (APY Amendment Act) came into effect on 1 January 2017 amending various provisions of the APY Act. Those amendments have been taken into account in this decision to the extent that they impact upon the immediate issues to be determined.

[11] Section 4 of the APY Act defines a traditional owner as an Aboriginal person who has, in accordance with Aboriginal tradition, social, economic and spiritual affiliations with and responsibilities for the lands or any part of them. Section 4 also defines Anangu as meaning "a person who is a member of the Pitjantjatjara, Yankunyljatjara or Ngaanyatjarra people; and ... a traditional owner of the lands or a part of them".

[12] The APY Act establishes the functions of APY Inc in the following terms:

[13] Various powers are established by s.6(2) of the APY Act. The Constitution (rules) of APY Inc is also set out within the APY Act.

[14] The role of the Executive Board is established by s.9B of the APY Act in the following terms:

[15] Under s.9C of the APY Act, the Chairperson and Deputy Chairperson are elected by the Executive Board.

… …

[16] Accordingly, s.9C(4) provides that the Chairperson is, in addition to his or her remuneration, allowances and expenses as a member of the Executive Board, entitled to an allowance determined by the Executive Board and approved by the Minister. In the case of Mr Adamson, the allowance determined for the Chairperson position was $920.15 gross per week plus a vehicle allowance of $450 per week. 3

[17] Section 9F of the APY Act provides the capacity for the Executive Board to delegate certain functions to the General Manager, and expressly excludes certain powers from that capacity. Any delegations must be in writing, may be absolute or conditional, do not derogate from (reduce) the power of the Executive Board to act in any matter; and are revocable at will by the Executive Board.

[18] The procedures for the Executive Board are established as follows:

[19] I observe that, amongst other matters, this means that:

Proxies and telephone attendance is permitted; and

[20] In addition, the Executive Board must have accurate minutes kept of its meetings and any Anangu is entitled to inspect (without charge) the minutes at the places on the lands, and during the times, nominated by the Executive Board and approved by the Minister.

[21] Duties to act with care, diligence and honesty, and procedures to deal with direct or indirect personal or pecuniary interests in a matter are provided in ss.12B, 12C and 12D of the APY Act. Section 12F requires that a Code of Conduct be established and this code is to be observed by members of the Executive Board, the Director of Administration, the General Manager and any employees of the APY. A comprehensive Code has been issued and this includes a procedure to deal with complaints about alleged non-compliance.

[22] The APY Amendment Act varies certain subsections of s.13, including 13B, 13D, 13G and 13O. However, these amendments do not come into effect until 1 July 2017. 5 Section 13B of the APY Act creates the position of Director of Administration, which involves an appointment by the Executive Board. The functions of that position are provided in the following terms:

[23] The role of General Manager is created by s.13D of the APY Act and involves a person also appointed by the Executive Board. The functions are as follows:

[24] The General Manager and Director of Administration form the senior management of APY Inc. These positions also operate subject to various duties to act with care, diligence and honesty, and procedures to deal with direct or indirect personal or pecuniary interest in a matter are provided in ss.13H, 13I and 13J of the APY Act.

… …

[25] The obligation of the senior managers to comply with directions from the Executive Board is qualified in the following terms:

[26] The combination of these provisions means that the senior managers have duties to oversee the implementation of the decisions of the Executive Board, conduct the day to day operations of the APY, and to discharge the financial and record keeping duties under the APY Act. In addition, unless a member of the Executive Board, including the Chairperson and Deputy Chairperson, is acting with the authority of a resolution of the Board, the senior managers are not subject to their individual directions.

[27] Part 4 of the APY Act sets out the procedure for disputes. Section 35 provides that there will be a panel of conciliators for resolving disputes on the lands. Each panel member is appointed by the relevant Minister with the approval of the APY. 6

[28] Section 35A(1) of the APY Act provides that an Anangu who is aggrieved by a decision or action of the Executive Board may apply to the Minister for conciliation. Section 36 of the APY Act also sets out a process for resolving such disputes.

3. The broader statutory context of the anti-bullying jurisdiction

[29] I will shortly deal with the specific provisions of the FW Act that are most relevant to this matter. The scope and nature of the Commission’s Anti-bullying jurisdiction has been canvassed in a number of decisions. 7

[30] Without detracting from those decisions or the detail of the FW Act itself, the Fair Work Amendment Bill 2013 Revised Explanatory Memorandum provided a useful general explanation of the provisions as follows:

[31] Having regard to the provisions of the FW Act, there are, amongst other matters, two prerequisites to the making of substantive orders in matters of this kind. 8 Firstly, a finding that the worker has been bullied at work by an individual or a group of individuals; and secondly, that there is a risk that the applicant worker will continue to be bullied at work by the individual or group concerned. I will return to this aspect when dealing with the future risk issue.

[32] For completeness, I note that where such a future risk is found, the Commission may make an order preventing the worker from being further bullied by that individual or group. This means that any orders must be directed towards the prevention of relevant future unreasonable conduct and be informed by, but not necessarily limited to, the prior unreasonable conduct as found. However, any substantive orders must deal with the actual future risk, based upon appropriate findings, and having regard to the considerations established by s.789FF(2) of the FW Act.

[33] Subject to the above, and the constraint that a substantive order cannot be made requiring payment of a pecuniary amount, the making of an order is a matter of discretion to be exercised judicially in the circumstances of each case.

[34] Accordingly, the power of the Commission to grant an order is limited to preventing the applicant worker from being (further) bullied at work, and the focus is on enabling normal working relationships to resume in a mutually safe and productive manner.

4. Was Mr Adamson as Chairperson a “worker” under the FW Act?

[35] I leave aside for the moment, the impact of the recent election and the fact that Mr Adamson is no longer the Chairperson of the Executive Board.

4.1 The meaning of a worker under the FW Act

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

[37] Section 789FD of the FW Act defines bullying conduct as follows:

[38] I note that there is no suggestion that APY Inc is not a constitutional corporation, and thereby, a constitutionally-covered business.

[39] The term “worker” is defined in s.789FC of the Act and this indicates 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.

[40] Section 7 of the WHS Act provides as follows:

[41] 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:

[42] The concept of “a person conducting a business or undertaking” (PCBU) is provided by s.5 of the WHS Act in the following terms:

[43] Furthermore, s.4 of the WHS Act includes the following definition of “volunteer”:

[44] The Workplace Health and Safety Regulations 2011 provide as follows:

[45] There is no suggestion that APY Inc is not a PCBU and it was not originally suggested that Mr Adamson in his capacity as the Chairperson, was a volunteer, at least within the meaning of the WHS Act.

4.2 The contentions of the respondent parties

[46] The respondent parties contend that Mr Adamson is not a "worker" within the meaning of the FW Act, and as a result, has no standing to bring this application. They do so on the following basis:

[47] The respondent parties also contend that a distinction should be drawn between a company director (as part of the employer) and an employee. 9 That is, the governing body of a statutory authority such as APY is the decision making body of “the employer” not the worker. Each member of the governing body is one component of the collective Board. The Board is the body that enters into contracts on the part of “the employer” with a “worker” as defined in section 7(1) of the WHS Act. In that context, the respondent parties further submitted that:

[48] The respondent parties contend that the payments made to Mr Adamson in his capacity as Chairperson, including those that were subject to the pay as you go (PAYG) taxation deduction, do not mean that he was an employee of APY Inc, or a worker. Further, they contend that the fact that Mr Adamson was included on the schedule of those covered by APY Inc’s workers compensation coverage is also not relevant in this regard.

[49] The respondent parties further contend that their interpretation of s.7(1) of the WHS Act is confirmed by ss.7(2B), 7(2C) and 7(2E) of the WHS Act which specifically expand or add to the definition of “worker” in s.7(1). Section 7(2E) for example, specifically expands the definition of "worker" to include persons associated with a “public authority” as defined in s.4 of the WHS Act. They also contend that the APY is not a public authority under that Act.

[50] In that regard, the respondent parties submitted that Parliament would not have specifically added to the definition of "worker" in this manner if it had intended that the primary definition of "worker" in s.7(1) of the WHS Act included members of a governing body established by or under an Act of Parliament or statutory office holders. Further, there is a presumption therefore that the Commonwealth Parliament did not intend that a person such as Mr Adamson, who was carrying out his responsibilities as an elected member of a statutory body established by an act of State Parliament, is "a worker" under section 7(1) of the WHS Act.

[51] Accordingly, they contend that it follows that Mr Adamson is caught by neither s.7(1), nor by the expanded definition of worker in ss.7(2) to 7(2E). Consequently, he is not "a worker" for the purposes of s.789FC of the FW Act.

4.3 The contentions of Mr Adamson

[52] Mr Adamson contends that as Chairperson of the Executive Board he is (was) a worker for present purposes. This, he contends, follows from the meaning of the (WHS) Act and the respondent parties’ submission is “alien to the normal notions of statutory interpretation i.e. the literal, mischief or purposive approach.” 10

[53] In particular, Mr Adamson contends that:

There is no basis to suggest that exclusion of the chair of a statutory board was a mischief intended to be cured by any applicable (alternative) legislation.

Applying the purposive approach, the objects of the WHS Act and the FW Act show a legislative intention to reform the workplace by improving the safety and quality of workplace life for people performing work.

[54] In relation to reference to a person engaged with a public authority, Mr Adamson contends that a public authority is one that carries on a function for a section of the public � as APY Inc does for Anangu. This is confirmed by the fact that all the state public sector legislation applies to APY and the (State) Minister has the ability to direct the board. Accordingly, APY Inc is a public authority, and is, and carries on, an undertaking.

[55] Mr Adamson also contends that payments he has received in his role of a Chairperson were the subject to PAYG taxation deductions and included for workers’ compensation coverage purposes.

[56] Mr Adamson submits, in effect, that the distinction drawn between an employer and an employee for some purposes is not relevant here. Further, he is not in a position of control given the operation of s.13M of the APY Act, but rather, is a “worker”.

4.4 Conclusion on whether Mr Adamson as Chairperson was a “worker” for present purposes

[57] The essential question is whether Mr Adamson as Chairperson is a person who carries out work in any capacity for APY Inc. I have for this purpose accepted that APY Inc is a PCBU, and this would appear to be the case. This question requires consideration of the nature of Mr Adamson’s role and activities as Chairperson, and the relationship between Mr Adamson and APY Inc, all in the context of the intended coverage of the definition of “worker” under the FW Act, and by reference, the WHS Act.

[58] It is appropriate to commence with the approach to the construction of the legislation.

[59] As a Full Bench12 relatively recently stated, ascertaining the meaning of the provisions of the FW Act necessarily begins with the ordinary and grammatical meaning of the words used.13 The words must be read in context by reference to the language of the Act as a whole and to the legislative purpose.14 Section 578(a) of the FW Act also directs attention to the objects of the FW Act and s.15AA of the Acts Interpretation Act 1901 requires that a construction that would promote the purpose or object of the FW Act is to be preferred to one that would not promote that purpose or object. The purpose or object of the FW Act is to be taken into account even if the meaning of a provision is clear. When the purpose or object is brought into account an alternative interpretation may become apparent. If one interpretation does not promote the object or purpose of the FW Act, and another does, the latter interpretation is to be preferred. Section 15AA requires the Commission to construe the FW Act, but not to rewrite it, in the light of its purpose.15

[60] The function of a legislative definition, as was pointed out by McHugh J in Kelly v R, 16 is not to enact substantive law, but to provide aid in construing the statute. A definition provision is therefore not to be interpreted in isolation and thereby given a meaning which negates the evident policy or purpose of a substantive enactment. Part 6-4B of the FW Act has the evident purpose of establishing a mechanism by which the bullying of workers at work may be stopped.17

[61] Further, Mason J affirmed in K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd:18

[62] There are no specific objects applicable only to Part 6-4B of the FW Act. There are however, objects in s.3 of the FW Act that should be taken into account. Section 3 provides as follows:

[63] I have set out the statements pertaining to the Anti-bullying jurisdiction made within the relevant Explanatory Memorandum20 earlier in this decision.

[64] The objects of WHS Act are stated as follows:

[65] The relevant explanatory memorandum 21 to what is now the WHS Act stated as follows in relation to s.7:

[66] Against that background, I turn now to the terms of s.7 of the WHS Act. APY Inc is not a public authority within the meaning of the WHS Act. That is, the legislation adopts a particular meaning. In that light, it is not appropriate for the Commission to adopt a broad or popularly understood meaning for the term. APY Inc is established under a law of the South Australian Parliament and is not established for a public purpose by or under a law of the Commonwealth or a law of a Territory, is not a Commonwealth company within the meaning of the Commonwealth Authorities and Companies Act 1997, and is not prescribed by the regulations to be a public authority for the purposes of the WHS Act.

[67] The fact that Parliament extended the definition of worker to include the category of public authority workers is a factor to be weighed in ascertaining the intended coverage of the WHS Act. However, the fact that the WHS Act is a Commonwealth Act, designed to operate in the context of State and Territory work health and safety laws that provide coverage for organisations and other businesses in the States and Territories, should also be considered when assessing the import of the definition.

[68] In terms of the nature of Mr Adamson’s role and functions, what emerges from the provisions of the APY Act is as follows:

[69] Of significance in this regard, is that Mr Adamson as Chairperson had a specific role under the terms of the APY Act and was paid significant remuneration for doing so. This remuneration is well beyond the sitting fees for general members of the Executive Board and exceeds cost reimbursement. The fact that PAYG taxation was deducted is of some significance and I note that no superannuation was apparently paid on behalf of Mr Adamson. This later point would not be consistent with an employment relationship; however, it is not contended that Mr Adamson was an employee and such is not required in order to be treated as a worker.

[70] At least in the role of Chairperson, it is not directly suggested that Mr Adamson fits neatly into any of the categories listed in s.7 of the WHS Act. In that regard, I will return to the concept of “volunteer” later in this decision. However, as contended of his behalf, the fact that the role does not directly fit into one of the nominated categories is not decisive. Those categories are non-exhaustive examples of the capacity in which a worker may undertake work for a PCBU, which shed some light on the scope of the definition, but cannot be determinative of that scope. Indeed, as would be clear from the WHS Act and the explanatory memorandum, a very wide approach to the definition of a worker has been adopted given that the essential element to determining who is a worker is the undertaking of work for a PCBU. Further, a broad approach to the definition recognises that WHS hazards and risks do not discriminate based on legal relationships or whether a person is paid.

[71] It seems to me that the activities undertaken by Mr Adamson in attending to the duties of Chairperson of APY Inc represent work. This is true in both a literal and contextual sense.

[72] The more difficult question is whether that work is carried out in any capacity for APY Inc. The need to consider this aspect in determining the application of s.7 of the WHS Act was emphasised by Watson VP in Balthazaar v Department of Human Services (Commonwealth). 22

[73] As a general rule, I doubt that the FW Act and WHS Act intended that members of organisations participating in the activities of those organisations, would, absent other factors be treated as workers, at least for present purposes. There is of course express coverage in s.7 of the WHS Act for some of these activities, which are not directly relevant here. However, I consider that there are particular features of the role of the Chairperson of the APY and the context in which that position exists, which are potentially significant.

[74] Mr Adamson in his capacity as Chairperson is certainly not engaged by APY Inc, rather he is elected to the Executive Board and then nominated as its chair. He does (or did), however, serve the organisation, and the APY community, as the Chairperson of the Executive Board and I have found that he undertakes work in that capacity. The Executive Board can be directed by the AGM of the APY (s.9B(4) of the APY Act) and as Chairperson, he can be directed to act for and on behalf of the Executive Board provided that he is acting in accordance with a resolution of that Board (s.13M of the APY Act as an example). As outlined earlier, without such a resolution, Mr Adamson is unable to give directions to the staff of APY Inc or make or implement any decisions, other than the calling of meetings, and at least arguably, those associated with the conduct of the meetings themselves. Any other work undertaken in his capacity as Chairperson would seem to be undertaken, as required, for the Executive Board of APY Inc.

[75] As outlined earlier, the fact that Mr Adamson receives relatively significant additional remuneration and expense payments as Chairperson, whilst not decisive, is more consistent with the notion that work is being undertaken for APY Inc.

[76] Mr Adamson may not be considered to be a “worker” in the traditional sense of the difference between a manager/employer and a worker. However, the context in which the expression is used here is different. This includes the purpose of the WHS Act and the notion under s.7(3) that a self-employed person may simultaneously be both a PCBU and a worker for the purposes of the WHS Act. I consider, on balance, that in light of the particular role and function of the Chairperson under the APY Act, that Mr Adamson could be said to undertake work in any capacity for APY Inc.

[77] Accordingly, although it is now not necessary to finally determine this issue given later findings, my provisional view would be that at the time of making the application (and for the period that he was the Chairperson of the APY Executive Board), Mr Adamson was a worker for present purposes and eligible to bring this application.

5. Would the alleged conduct be considered as having taken place whilst Mr Adamson was at work within the meaning of the FW Act?

5.1 The relevance of the question and the approach taken by the Commission

[78] This issues arises directly from the definition of being “bullied at work” in s.789FD(1) of the FW Act. That is, the bullying conduct must take place whilst the applicant worker was “at work”.

[79] In Bowker and Others v DP World Melbourne Limited T/A DP World and Others 23 (DP World) a Full Bench of the Commission determined:

5.2 The contentions of the parties

[80] This aspect received little attention in the submissions of the parties. I suspect that it was considered to be a sub-set of the question as to whether Mr Adamson was a worker.

5.3 Conclusions on whether the alleged conduct took place whilst “at work”

[81] The broad allegations outlined in the s.789FC application include:

[82] Mr Adamson has also raised a complaint about certain practices associated with the minutes of the Executive Board and other related governance issues linked to the General Manager’s conduct and role. In addition, further concerns have been raised as a result of alleged conduct taking place since the application was lodged and these are broadly consistent with the nature of the above contentions.

[83] All of these allegations are strongly contested by the respondent parties and these parties have also made a number of counter allegations. I make no findings about the competing contentions at this point. It is unnecessary to do so given the nature of the present issues being determined by the Commission and none of the evidence or other factual contentions filed to date have been tested.

[84] Given the approach adopted in DP World, and subject to the provisional findings above, it is reasonably apparent, that some or all of the alleged conduct, if it occurred, took place whilst Mr Adamson was “at work”, in his capacity as Chairperson.

6. Is the application an abuse of process?

6.1 The contentions of the respondent parties

The respondent parties submitted that the application by Mr Adamson is an abuse of process in that:

[85] It was also submitted that the proceedings are unjustifiably oppressive to the General Manager and to the Deputy Chairperson and that Mr Adamson is attempting to use the jurisdiction of the Commission for the illegitimate purpose of contravening and subverting the provisions of the APY Act.

[86] The respondent parties also noted that they had sought further and better particulars of the allegations made by Mr Adamson but to date these have not been provided.

6.2 The contentions of Mr Adamson

[87] Mr Adamson contends that the suggestion of an 'abuse of process' is not arguable and should not have been submitted. Further, he contends that he has brought a proper bullying complaint that needs to be determined.

[88] He also contends that the alleged bullying has continued with weekly or daily “shocking episodes” and that the abuse of process argument itself is part of the bullying.

6.3 Conclusion on the abuse of process contention

[89] An abuse of process can occur in a number of circumstances, however as cited by the respondent parties, has often been held 24 to arise in one of three established categories:

[90] Some of the elements of Mr Adamson’s allegations could be said to arise from a dispute about the proper application of the APY Act. I also accept the respondent parties’ proposition that some of these matters could have been advanced in other jurisdictions, including those available under the APY Act itself, and those that deal with the proper administration of State legislation (such as the Supreme Court of South Australia).

[91] However, the Anti-bullying jurisdiction of the Commission has, in my view, been cast in a deliberately wide manner. It is also an additional jurisdiction and is not intended to be a substitute right. This is evident from the terms of the FW Act, including s.789FH which deals specifically with the preservation of the WHS Act and corresponding State and Territory laws.

[92] I also accept that this application may be confronting and difficult for the persons named. To some extent this flows from the personal nature of applications in this particular jurisdiction and the Commission in dealing with the application has been mindful of the interests and circumstances of all parties, including the respondent parties. Importantly for present purposes, I do not consider that the application was taken without a genuine belief on the part of Mr Adamson about the issues and I do not consider that the procedures associated with dealing with the application have been unjustifiably oppressive to the respondent parties.

[93] I also consider that although the provision of further and better particulars might be useful in the lead up to the determination of the substantive application, the nature of the alleged conduct and Mr Adamson’s views as to why he considers that conduct to be bullying, is sufficiently clear in the application and the supplementary material provided as part of the Commission’s processes to deal with this application.

[94] The fact that the s.789FC application was not withdrawn following the issuing of the Commission’s Statement and Recommendations is also not conclusive of an abuse of process. They were issued following a without prejudice conciliation process conducted by consent of the parties and the decision not to discontinue the application was based upon Mr Adamson’s stated view that the respondent parties were not complying with what appeared to be mutually supported outcomes. Whether that is so, can only be tested by hearing evidence about the actual conduct and the risk, if any, of future unreasonable conduct.

[95] There are certain aspects of the s.789FC application that are problematic, including those that appear to arise from a misunderstanding about the operation of the APY Act and various disputes as to the status of earlier meetings and potential resolutions of the Executive Board. I have made no findings about the substantive merit of the application or the responses that have been provided. Indeed, some of the competing allegations and contentions about the operation of the APY Act and its implications for what might be reasonable conduct in that context, are clearly arguable. However, these matters could be considered and determined by the Commission to the extent that they relate to the issues arising from the s.789FC application. That is, even allowing for the broader disputes about the operation of the APY Act, the actual alleged conduct of the respondent parties, and Mr Adamson, would be relevant to potential findings falling within the scope of the Anti-bullying provisions of the FW Act.

[96] Accordingly, I do not consider that the s.789FC application as made and advanced was an abuse of process.

[97] The recent change in circumstances has, however, significantly altered the context in which the application was made. I will later deal with the no future risk issue that arises but I would observe in the present context that the continuation of the application in circumstances where Mr Adamson was no longer a member of the Executive Board (as is now the case), might well become an abuse of process. That is, without a context in which the Commission might consider making orders that impact upon him as Chairperson of the Executive Board, the application becomes a matter of determining whether the previous alleged conduct had occurred, without this Commission having a proper reason for doing so.

[98] Further, in the new context, the continuing issues that Mr Adamson wants to agitate fundamentally concern the proper operation of the Board under the APY Act and his dispute with Mr King. This would now not represent a proper purpose to continue with a s.789FC application given the apparent statutory purpose of the FW Act and the limits upon the circumstances in which orders may be made. To the extent that Mr Adamson seeks to continue the application to protect the interests of some remaining members of the Executive Board, for reasons outlined below, this is not a proper basis for that course of action in the absence of himself continuing to be a worker in the relevant workplace.

7. The Future Risk issue

[99] This issue arises from s.789FF of the FW Act, which provides as follows:

[100] In brief terms, the respondent parties contend that as a result of the APY Executive Board elections conducted on 12 April 2017, the following applies:

[101] In essence, the respondent parties contend that as Mr Adamson is no longer the Chairperson, or a member of the Executive Board, there is no basis upon which the Commission could find that there was a further risk of bullying conduct within the meaning of the FW Act. In the absence of any power to consider the making of an order under s.789FF of the FW Act, the present s.789FC application should be dismissed.

[102] Mr Adamson contends that this application should proceed and be determined by the Commission. To the extent that his submissions are directed at the future risk issue, he contends that:

[103] Mr Adamson also contends that he will, based upon the above factors, be acting as a volunteer (and I infer – thereby still a “worker” under the FW Act) and that in any event, as the former Chairperson he needs be protected from “further bullying”.

[104] In relation to Mr Adamson’s contention that he “remains” a volunteer for present purposes, the respondent parties contends that a volunteer is simply a person who does work for a relevant person in an unpaid capacity and that Mr Adamson is not and will not be doing so. That is, the basis upon which Mr Adamson contends that he will be a worker in the future is not valid as his “rights” and roles are those of any Anangu. None of this means that Mr Adamson will be working for APY Inc in any capacity.

[105] The respondent parties also contend that if in the future Mr Adamson did take on the role of a genuine “volunteer” and was subject to bullying conduct in that capacity, he could make a further application at the relevant time.

[106] In G.C.25, I referred to a leading case and made the following observations in relation to a risk of further bullying and the capacity of the Commission to make an order in such circumstances:

[107] In Obatoki 26 the Full Bench was dealing with an application where the applicant worker was no longer in the relevant employment relationship and the anti-bullying application had been dismissed by the Commission. The Full Bench concluded as follows:

[108] What is evident from the terms of the FW Act when applied in this case, is that the future risk must pertain to likelihood of future unreasonable conduct that might be directed towards Mr Adamson in his capacity as a worker attending work along with the individuals named in the application. That is, it is not sufficient that there be a future risk to others on the Board or a future risk to Mr Adamson in some other (non-worker) capacity. The focus of the legislation and the prerequisites for the making of any order are specific and relatively narrow in that respect.

[109] I have provisionally accepted that it is likely that Mr Adamson was a worker for present purposes in his capacity as the Chairperson. It is clear from the circumstances of this matter, that there is presently no risk that Mr Adamson will, in the foreseeable future, be bullied at work by the individual or group of individuals named in the application in that capacity. Mr Adamson is likely to still have dealings with the individuals named in the application, including by attending Board and community meetings as an Anangu man and elder, but he will not be doing so in the capacity of Chairperson. There is of course the prospect that Mr Adamson could be elected back to the Executive Board at some time in the future; however, it would be inappropriate for the Commission to proceed on the basis of that speculation. Further, and in any event, whether Mr Singer and Mr King were also involved with the Board at whatever time that might occur, and what the other circumstances might also be at that stage, is an exercise of further unhelpful speculation.

[110] This then leaves the notion that Mr Adamson should now be considered to be a volunteer. Volunteers may be “workers” under the WHS Act, depending upon the circumstances. I have earlier set out the terms of s.7 of the WHS Act and related provisions. APY Inc is not conducting a voluntary association in that it employs a number of employees including Mr King 27 and is likely to be a PCBU. This means that if Mr Adamson was considered to be a volunteer within the meaning of s.7 of the WHS Act, he would be a worker for present purposes.

[111] The concept of a volunteer is defined in s.4 of the WHS Act as meaning a person who is acting on a voluntary basis (irrespective of whether the person receives out-of-pocket expenses). On face value, a volunteer would appear to comprehend a person who is performing work on a voluntary basis, that is without an obligation to do so and presumably, without being paid for that work, other than in the form of out-of pocket expenses.

[112] The context in which Mr Adamson now contends he will have dealings with the Executive Board and APY Inc potentially include when attending Board and community meetings as an Anangu man and elder. It is also suggested that he has been invited by a continuing member of the Executive Board to attend board meetings as that member’s supporter and advisor. I have accepted for present purposes that this invitation has been made.

[113] It may be the case that Mr Adamson in attending Board meetings and assisting one of its members would be acting as a volunteer, at least in a very broad view of that concept. However, even if that is the case, Mr Adamson would not in that capacity be performing work for APY Inc. I have earlier referred to the importance of considering the definition of worker as a whole, including in relation to this aspect. 28

[114] The other bases upon which Mr Adamson relies in relation to his volunteer proposition are also not relevant. These roles, even if considered in the present context, are roles and rights that apply to members of the APY more generally. Further, even if Mr Adamson has some personal obligations arising from his position as the (now) former Chairperson, this does not mean that he will be doing so as a volunteer performing work for APY Inc.

[115] In my view, Mr Adamson is not now undertaking a role for the Board or the APY more generally. He is a member of the community with a role in that respect, but would not be performing work for APY Inc (as a PCBU) as contemplated by s.7 of the WHS Act. In that regard, I do not consider that it was the intention of the FW Act that members of an organisation (in this case the APY) would be considered to be workers in the circumstances now apparently facing Mr Adamson.

[116] Accordingly, there is no proper basis upon which the Commission could find that there is a risk that the Mr Adamson, as a worker, will continue to be bullied whilst at work by the individual or group concerned as required by s.789FF(b)(ii) of the FW Act. As a result, there is no basis to consider making an order arising from this application in the foreseeable future.

8. Conclusions and orders

[117] I have not made any findings in relation to the substantive merit of Mr Adamson’s application or the counter claims advanced by the respondent parties. The jurisdiction for the Commission to do so only arises within the framework of the FW Act. For reasons set out above, there are limitations on the scope of the Commission’s capacity to deal with a s.789FC application where the relationships between the parties that might give rise to the Commission’s jurisdiction have ended or changed to remove the prospect of future risk in a relevant capacity. This arises from the particular manner in which the power to make orders has been expressed within the FW Act.

[118] In this case, there is no reliable basis upon which a further relevant risk of bullying conduct by the relevant respondent parties towards Mr Adamson as a worker might arise and none is evident from the circumstances. In the absence of that risk or a foreseeable basis for such a risk, no orders can be made as a result of the application even if bullying conduct was to be found. Accordingly, there are no reasonable prospects that the anti-bullying application can now relevantly succeed.

[119] The Commission is empowered by s.587(1)(c) of the FW Act to dismiss an application in such circumstances.

[120] The application of “no reasonable prospect of success” has been discussed in similar circumstances in Shaw v ANZ.29 The Deputy President said (footnotes omitted):

[121] As would be clear from the earlier discussion, in the case of a finding that there is no risk of future bullying in a matter such as this, the issue concerns the Commission’s capacity to make an order in the s.789FC application. This is directly relevant to the prospects of success for the application but does not by itself go to the original jurisdiction to hear the substantive application. Section 587(1) is also written in discretionary terms in that the Commission “may” dismiss the relevant application.

[122] Accordingly, the power to dismiss an application on that basis is discretionary but should be exercised in appropriate cases. 30 In this case, the recent election has fundamentally altered the context for this application and whilst future board elections could conceivably see the return of Mr Adamson to the Executive Board (and thereby potentially to become Chairperson again), this is a matter of pure speculation at this point and the circumstances that might be applicable at that time, are unknown.

[123] In all of the circumstances of this matter, including the view that I have taken about the continuation of the matter in the context of the changed context becoming an abuse of process, it is appropriate to dismiss the s.789FC application and I so order.

[124] I also note the capacity for Mr Adamson to bring a new s.789FC application in the event that he genuinely believes that bullying of him as a worker by any relevant individuals at the workplace actually arises in the future.31


COMMISSIONER

Written submissions:

2017:

APY Inc, Mr King and Mr Singer – 20 March, 12 and 24 April and 12 May.

Mr Adamson – 31 March, 5 and 8 May.

 1   See Adamson [2017] FWC 1340 for some of this history.

 2   Permission was given for the respondent parties to be represented for earlier proceedings under s.596 of the FW Act. The parties did not need permission in connection with the filing of written submissions and materials given the operation of the Fair Work Commission Rules 2013 – Rule 12(1)(b) and (c).

 3   Respondent parties’ written submission of 20 March 2017.

 4   Varied by s.9 of the APY Amendment Act.

 5   APY Amendment Act s.2(2). The amendments with the later operative date do not directly impact upon the present jurisdictional matter.

 6   At the time of making this application, the APY Act provided for the appointment of a single conciliator.

 7   See GC [2015] FWC 6988 and Amie Mac v Bank of Queensland Limited and others [2015] FWC 744.

 8   I leave aside the capacity to make interim orders under s.589 of the FW Act.

 9   Relying upon Lee v Kleen King Pty Ltd [2013] FWC 6759.

 10   Submissions filed on behalf of Mr Adamson dated 5 April 2017.

 11   Consistent with the Macquarie on line dictionary.

12 4 Yearly Review of Modern Awards: Preliminary Jurisdictional Issues [2014] FWCFB 1788 at [14] and [15].

13 Australian Education Union v Department of Education and Children’s Services (2012) 285 ALR 27 at [26].

14 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69].

15 Mills v Meeking (1990) 169 CLR 214 at 235 per Dawson J; R v L (1994) 49 FCR 534 at 538.

 16   (2004) 218 CLR 216 at [84] and [103].

 17   Mac v Bank of Queensland Limited and Others [2015] FWC 774 at [89].

18 (1985) 60 ALR 509 at 514.

19 Also see Solution 6 Holdings Ltd v Industrial Relations Commission of NSW (2004) 208 ALR 328 at 348 per Spigelmann CJ.

20 Explanatory Memorandum to the Fair Work Amendment Bill 2013.

 21   Explanatory Memorandum to the Work Health and Safety Bill 2011.

 22   [2014] FWC 2076.

 23   [2014] FWCFB 9227.

 24   Rogers v R (1994) 181 CLR 251 at 286.

25 [2014] FWC 6988.

 26   Olusegun Victor Obatoki [2014] FWC 8828.

 27   WHS Regulation 7.

 28   See: Balthazaar v Department of Human Services (Commonwealth) [2014] FWC 2076.

29 [2014] FWC 3408.

 30   See Atkinson v Killarney Properties Pty Ltd [2015] FWCFB 6503.

31 See Obatoki at [17]. See also Bowker, Coombe and Zwarts v DP World and The Maritime Union of Australia [2015] FWC 7312.

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