FWC looks into worker’s jurisdictional and eligibility issues
The Fair Work Commission (FWC) recently dealt with a case where a worker sought protection from alleged workplace bullying.
The worker filed an application under section 789FC of the Fair Work Act 2009, claiming she experienced bullying behaviour while employed at her workplace and seeking orders to make it stop.
The worker argued that despite no longer working at the specific location, she should still be eligible for anti-bullying protections. She described her employment status as "suspended" rather than terminated, suggesting an ongoing employment relationship that would allow her application to proceed.
However, the case encountered jurisdictional obstacles that would determine whether the FWC could hear the matter. The employer challenged the application on two fronts: questioning whether the workplace fell under FWC jurisdiction and disputing the worker's employment status at the time of filing.
The teacher lodged her application on 27 November 2024, alleging bullying had occurred at Ascot Vale Heights School, a Victorian government school. The Secretary to the Department of Education and Training objected to the application on jurisdictional grounds.
For the FWC to have jurisdiction in bullying matters, the alleged conduct must occur "while the worker is at work in a constitutionally-covered business." This requirement determines which workplaces fall under the FWC's anti-bullying powers.
The Commission noted that the teacher was "employed by the Secretary to the Department of Education and Training (the Department), on behalf of the Crown in right of the State of Victoria, under section 2.4.3 of the Education and Training Reform Act 2006 (Vic)." This legal relationship became central to the jurisdiction question.
The second objection concerned the teacher's actual employment status when she filed her application. This point would affect her eligibility to seek anti-bullying remedies.
The Commission found the teacher's characterisation of being "suspended" was incorrect. The decision stated:
"At the time of her application, [the worker] alleged that she was suspended from her employment at Ascot Vale Heights School. This was not an accurate description of the position. [the worker] had in fact resigned from her employment at the School."
The Commission explained: "The reference to 'suspension' was a reference to a limitation placed on her ability to work at other Victorian government schools while there was an ongoing investigation into her conduct. Although she had successfully obtained an offer of employment at another such school, the employment did not proceed due to the limitation described above."
The Commission analysed section 789FD(3) of the Fair Work Act, which defines when a workplace qualifies as a "constitutionally-covered business" for anti-bullying purposes. This section provides several ways a business can meet this threshold.
The Commission evaluated each possibility. It noted the school "is a Victorian Government school established under section 2.2.1 of the Education Act. Its business or undertaking is conducted principally in Ascot Vale, Victoria, which is neither a Territory nor a Commonwealth place."
The Commission also determined the school was "not a body corporate incorporated in a Territory" and "not a Commonwealth authority." The Victorian Government was "not the Commonwealth" for these purposes.
The final jurisdictional question was whether the school could qualify as a "constitutional corporation" - one pathway to FWC jurisdiction. This term refers to "foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth."
The Commission cited earlier case law, stating: "the Department is the statutory and administrative creation of the State of Victoria. Both the Department and the School are emanations of the Crown in right of that State. The State is not a corporation, either of the foreign, financial or trading kind, and nor is the School."
Based on this analysis, the Commission reached a clear conclusion: "The School is not a constitutional corporation." This finding was significant for determining whether the FWC had power to hear the bullying application.
The worker's employment status created a second barrier to her application. The Commission stated that "even if the Commission had jurisdiction to deal with the application, [the worker] was not entitled to apply to the Commissioner under s.789FC in relation to her employment with the School at the time the application was made."
The definition of bullying under the Fair Work Act requires a worker to be bullied "while the worker is at work in a constitutionally-covered business." The case makes clear that both elements must be present - active employment and a constitutionally-covered business.
The FWC explained that state government schools, as extensions of state authority, fall outside the constitutional corporations covered by federal workplace protections.
For employees in such settings, state-based remedies may be the appropriate avenue when addressing workplace bullying concerns.
The Commission's ruling was straightforward: "The application is dismissed" on both jurisdictional grounds, highlighting the important distinctions between state and federal workplace jurisdictions in Australia.
