Senior developer alleges bullying conduct from co-workers
The Fair Work Commission (FWC) dealt with an application for a stop bullying from an employee who said his co-workers were intimidating him.
However, the Commission already said it did not have jurisdiction over the case at the initial stage of the case.
The central question is: When does the FWC exercise power over bullying applications?
The employee worked for the Department of Justice and Community Safety (DJCS) as a senior developer in Technology Solutions. He alleged bullying conduct from four co-workers, saying that “he was not performing his duties to the required standard.”
The employer argued that it is a state government department and not a constitutional-covered business, and consequently, it said the worker’s application did not fall within the coverage of the anti-bullying provisions of the FW Act.
It also said the “alleged bullying” was “reasonable management action carried out in a reasonable manner.”
When can the Fair Work Commission act on a bullying application?
For the anti-bullying jurisdiction to be engaged, the Commission must find that a worker has been bullied at work within the meaning of the FW Act.
The Commission may make orders to stop bullying if:
- the worker has been bullied at work by an individual or a group of individuals; and
- there is a risk that the worker will continue to be bullied at work by the individual or group.
The Act also explained the definition of “being bullied at work.”
A worker is bullied at work if, while the worker is at work in a constitutionally-covered business, an individual; or a group of individuals; repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member; and that behaviour creates a risk to health and safety.
Covered employers
The Act also said a bullying order may be enforced on the following establishments or employers:
“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.”
Is the employee’s workplace under the FWC’s scope?
“The initial focus of the [case] is the workplace where the employee is at work when the alleged unreasonable conduct takes place. That is, the conduct must take place while the worker is at work in a constitutionally-covered business,” the decision said.
“In this case, the workplace is a Victorian state government department. It’s not located in a Territory and there is no suggestion that it is conducted by the Commonwealth or a Commonwealth authority.”
“The workplace is conducted by DJCS, and the employer of the employee is the Crown in the right of the State of Victoria,” it explained.
“Even if DJCS is a separate legal entity from the State, they are not corporations within the meaning of the Constitution. The absence of a corporate entity means that it cannot be a constitutional corporation. Accordingly, the workplace concerned is not a constitutionally-covered workplace,” the FWC said.
Thus, ultimately, it dismissed the employee’s stop bullying application.