Fair Work Act 2009

s.789FC - Application for an order to stop bullying

Application for an FWC order to stop bullying - jurisdictional objection

• [1] On 16 November 2024, Mrs Ingrid Stonhill (the Applicant) made an application to the Fair Work Commission (the Commission) for an order to stop bullying under s.789FC of the Fair Work Act 2009 (FW Act).

• [2] Mrs Stonhill is the Chief Executive Officer of the Katherine Town Council. The Person Named in the application is Councillor Amanda Kingdon, an elected Councillor of the Katherine Town Council.

• [3] I conducted a Telephone Conference in this matter on 12 December 2024, further to which I issued a Recommendation, by consent of the parties, that all communication between the CEO and Councillor Kingdon would be facilitated through the Mayor for a trial period of three months.

• [4] Following this trial period, I sought an update from the parties. Mrs Stonhill advised that the trial period had been unsuccessful and pressed her application for an order to stop bullying. Councillor Kingdon submitted that the trial had been successful.

• [5] On 27 April 2025, Councillor Kingdon advised that, in light of Mrs Stonhill pressing her application for an order to stop bullying, their jurisdictional objection must be determined in the first instance. The jurisdictional objection was expressed as follows, that the Commission must:

"...ascertain whether or not employees in the Northern Territory who are employed in the Northern Territory Local Government Industry as defined in section 7 in the Local Government Act 2019 (NT), can make section 789FC of the Fair Work Act (Cth) Form F 72 applications in the Fair Work Commission against elected members as defined in sections 7 and 44 of the Local Government Act 2019 (NT)."

• [6] On 28 April 2025, Directions were issued for filing of materials by all parties in relation to the jurisdictional objection.

• [7] This Decision determines the jurisdictional objection only.

• [8] The relevant sections of the FW Act relating to stop bullying applications are 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.

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

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

(a) while the worker is at work in a constitutionally‑covered business:

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:

(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."

• [9] Under the Work Health and Safety Act 2011 (WHS Act), 'worker' is defined at s.7 as follows:

(1) A person is a worker if the person carries out work in any capacity for a person conducting a business or undertaking, including work as:

(c) an employee of a contractor or subcontractor; or

(d) an employee of a labour hire company who has been assigned to work in the person's business or undertaking; or

(2) For the purposes of this Act, the Commissioner of the Australian Federal Police, a Deputy Commissioner of the Australian Federal Police or an AFP employee (all within the meaning of the Australian Federal Police Act 1979) is:

(b) at work throughout the time when the person is on duty or lawfully performing the functions of the Commissioner of the Australian Federal Police, a Deputy Commissioner of the Australian Federal Police or an AFP employee, but not otherwise; and

(c) carrying out work for a business or undertaking conducted by the Commonwealth when the person is on duty or lawfully performing the functions of the Commissioner of the Australian Federal Police, a Deputy Commissioner of the Australian Federal Police or an AFP employee, but not otherwise; and

(2A) For the purposes of this Act, a member of the Defence Force is:

(b) at work throughout the time when the person is lawfully performing the functions of a member of the Defence Force, but not otherwise; and

(c) carrying out work for a business or undertaking conducted by the Commonwealth when the person is lawfully performing those functions, but not otherwise; and

(2B) For the purposes of this Act, a person who is the holder of, or acting in, an office established by a law of the Commonwealth or a law of a Territory (other than the Australian Capital Territory or the Northern Territory) is:

(b) at work throughout the time when the person is lawfully performing the functions of that office, but not otherwise; and

(c) carrying out work for a business or undertaking conducted by the Commonwealth when the person is lawfully performing those functions, but not otherwise; and

(2C) For the purposes of this Act, a person who constitutes, or is acting as the person constituting, a public authority is:

(b) at work throughout the time when the person is lawfully performing the functions of that authority, but not otherwise; and

(c) carrying out work for a business or undertaking conducted by the public authority when the person is lawfully performing those functions, but not otherwise; and

(2D) For the purposes of this Act, a person who is, or is acting as, a member or a deputy member of a public authority is:

(b) at work throughout the time when the person is lawfully performing the functions of the public authority, but not otherwise; and

(c) carrying out work for a business or undertaking conducted by the public authority when the person is lawfully performing those functions, but not otherwise; and

(2E) For the purposes of this Act, a person who is, or is acting as, a member or a deputy member of a body established by or under an Act establishing a public authority for a purpose associated with the performance of the functions of the public authority is:

(b) at work throughout the time when the person is lawfully performing the functions of the body, but not otherwise; and

(c) carrying out work for a business or undertaking conducted by the public authority when the person is lawfully performing those functions, but not otherwise; and

(2F) The Minister may, by instrument in writing, declare that a person of a class specified in the declaration is, for the purposes of this Act:

(b) at work throughout the time specified in the declaration; and

(c) carrying out work for a business or undertaking conducted by the Commonwealth, or a public authority specified in the declaration, when the person is performing functions of the kind specified in the declaration; and

(d) an employee of the Commonwealth, or a public authority specified in the declaration.

(2G) A declaration under subsection (2F) may only be made in relation to a class of persons if persons of that class engage in activities or perform acts:

(a) where the declaration specifies that persons of that class are carrying out work for a business or undertaking conducted by the Commonwealth, or are employees of the Commonwealth:

(i) at the request or direction of the Commonwealth; or

(iii) by or under a law of the Commonwealth or of a Territory (other than the Australian Capital Territory or the Northern Territory); or

(b) where the declaration specifies that persons of that class are carrying out work for a business or undertaking conducted by a public authority specified in the declaration, or are employees of a public authority specified in the declaration:

(i) at the request or direction of the public authority; or

(2H) A declaration under subsection (2F) has effect according to its terms.

(3) The person conducting the business or undertaking is also a worker if the person is an individual who carries out work in that business or undertaking."

• [10] Section 5 of the WHS Act provides the meaning of 'person conducting a business or undertaking' as follows:

"5 Meaning of person conducting a business or undertaking

(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."

• [11] Councillor Kingdon submitted that she is a Northern Territory local government member of the Katherine Town Council. Councillor Kingdon submitted that her role as a member of a council is as outlined in section 44 of the Local Government Act 2019 (NT) as follows:

(a) to represent the interests of all residents and ratepayers of the council area; and

(c) to facilitate communication between the members of the council's constituency and the council; and

(d) to be properly informed to enable participation in the deliberations of the council and its community activities; and

(e) to ensure, as far as practicable, that the council acts honestly, efficiently and appropriately in carrying out its statutory responsibilities; and

(f) to ensure that council resources are used prudently and solely in the public interest; and

(g) to actively monitor the financial affairs of the council.

(2) However, a member of the council has no power to direct or control staff of the council, or to interfere with the management of staff of the council.

(3) A member of the council has a duty to act, at all times, in what the member genuinely believes to be the best interests of the council's constituency."

• [12] As to the definition of 'worker' provided in s.7 of the WHS Act, Councillor Kingdon submitted that she is an elected member Councillor, and is not:

• an employee;
• an independent 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; or
• a volunteer.

"The question to be answered by the Fair Work Commission is can employees in the Northern Territory who are employed in the Northern Territory Local Government Industry as defined in section 7 in the Local Government Act 2019 (NT), make section 789FC of the Fair Work Act (Cth) Form F 72 applications in the Fair Work Commission against elected members as defined in sections 7 and 44 of the Local Government Act 2019 (NT)?"

• [14] Relevantly, Councillor Kingdon noted that there are almost 100 elected members in the Northern Territory as defined in sections 7 (Definitions) and 44 (Role of members) of the Local Government Act 2019 (NT) that would be affected by such a determination.

• [15] Councillor Kingdon submitted that the answer to the above question should be 'no'.

• [16] Councillor Kingdon relied on the Full Bench decision of the Commission in Bibawi v Stepping Stone Clubhouse Inc t/a Stepping Stone & Others [2019] FWCFB 1314, which relevantly provided:

"[18] The definition of "worker" in s 7(1) of the WHS Act is very broad, in that as a person need only perform work "in any capacity for" the other person conducting the business or undertaking in order to satisfy the definition. The definition was expressly described as "broad" in the Explanatory Memorandum to the Fair Work Bill 2013 which added Pt 6-4B to the FW Act. The types of workers listed in paragraphs (a)-(i) of s 7(1) are taken to be included in the general definition in the chapeau to the provision, but do not operate to limit it. As to the interpretation and application of s 7(1), we agree with and adopt the following analysis of the provision in the decision of Vice President Watson in Balthazaar:

"[19] The definition of "worker" in s.7(1) of the WH and S Act contains two primary elements. First, the person must carry out work. Secondly, the work must be carried out for a person conducting a business or undertaking..."

• [17] Councillor Kingdon noted that s.5(5) of the WHS Act specifically provides, in relation to the 'meaning of person conducting a business or undertaking':

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

• [18] Section 4 (Definitions) of the WHS Act provides that:

"local authority means a local authority under a corresponding WHS law."

• [19] 'Corresponding WHS law' is also defined at s.4 of the WHS Act as follows:

"corresponding WHS law means each of the following:

(a) the Work Health and Safety Act 2011 of New South Wales;

(b) the Occupational Health and Safety Act 2004 of Victoria;

(c) the Work Health and Safety Act 2011 of Queensland;

(d) the Work Health and Safety Act 2020 of Western Australia;

(e) the Work Health and Safety Act 2012 of South Australia;

(f) the Work Health and Safety Act 2012 of Tasmania;

(g) the Work Health and Safety Act 2011 of the Australian Capital Territory;

(h) the Work Health and Safety (National Uniform Legislation) Act 2011 (NT);

(i) any other law of a State or Territory prescribed by the regulations."

• [20] Councillor Kingdon submitted that, relevantly, the Work Health and Safety (National Uniform Legislation) Act 2011 (NT) provides:

"5 Meaning of person conducting a business or undertaking

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

• [21] Councillor Kingdon submitted that in accordance with the above sections of the relevant Acts, the Commission does not have jurisdiction to deal with the s.789FC application brought Mrs Ingrid Stonhill, Chief Executive Officer of the Katherine Town Council. Councillor Kingdon submitted that in accordance with the above sections of the relevant Acts, Councillors, as defined in sections 7 and 44 of the Local Government Act 2019 (NT), are excluded from being included in the Part 64B, sections 789FA to 789FL of the FW Act.

• [22] Councillor Kingdon submitted that Mrs Stonhill's application should be dismissed.

• [23] Mrs Stonhill submitted that Councillor Kingdon, by virtue of her statutory office and functional role within the council governance structure, is capable of being a respondent under s.789FD(1) of the FW Act.

• [24] Mrs Stonhill submitted that in accordance with s.789FD ('When is a worker bullied at work?'), the FW Act does not require the individual alleged to have engaged in the conduct to be:

"• The applicant's employer in a contractual sense,

Instead, the focus is on whether the conduct occurred "at work" and whether the alleged perpetrator is an individual whose actions satisfy the statutory elements.

• [25] Mrs Stonhill submitted that the Commission has confirmed that the phrase "at work" in s.789FD of the FW Act must be interpreted contextually and functionally. Mrs Stonhill cited the decision in Bowker v DP World Melbourne Ltd [2014] FWCFB 9227 (Bowker), in which the Full Bench clarified that a worker is "at work" when performing work-related activities, regardless of physical location or time of day.[1] Mrs Stonhill submitted that the decision further provided the unreasonable behaviour alleged need not be committed by someone who is also "at work" at the time:

"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)."[2]

• [26] Mrs Stonhill submitted that the Commission also rejected a narrow temporal view of bullying behaviour, particularly when it involves social media or indirect communications. In such cases, it is sufficient that the worker encounters the conduct while at work, even if the conduct originated earlier or outside the conventional workplace.[3] Mrs Stonhill submitted that the decision "cautions against rigid interpretations of "at work" and supports a case-by-case evaluation, acknowledging the wide variety of modern work settings and relationships".[4]

• [27] Mrs Stonhill submitted that the Commission in Bowker clarified that the phrase "at work" encompasses both the performance of work and other activities authorised or permitted by the employer, regardless of physical location or time. Mrs Stonhill submitted this means that bullying conduct does not need to occur within the physical workplace or during standard working hours to fall within the Commission's jurisdiction.

• [28] Further, Mrs Stonhill submitted that the decision in Bowker indicates that the employment status of the individual engaging in the alleged bullying conduct is not determinative. What matters is the connection between the conduct and the applicant's work environment.

• [29] Mrs Stonhill submitted that in the present case, Councillor Kingdon's conduct, occurring during Council meetings, in official correspondence, in relation to governance and performance management communications, and in decisions affecting Mrs Stonhill's role, took place clearly within the scope of Mrs Stonhill's work duties and responsibilities as CEO of the Katherine Town Council. Accordingly, Mrs Stonhill submitted that Councillor Kingdon's formal status as an elected member does not preclude the Commission's jurisdiction under s.789FC, as the bullying conduct alleged is sufficiently connected to Mrs Stonhill's work.

The Council is a Constitutionally-Covered Business

• [30] Mrs Stonhill submitted that Katherine Town Council falls within the definition of a "constitutionally-covered business" under s.789FD(3) of the FW Act. Mrs Stonhill submitted that s.789FD(3)(a)(iv) provides that a "body corporate incorporated in a Territory" constitutes a constitutionally covered business for the purposes of the anti-bullying jurisdiction. Mrs Stonhill submitted that the Council is established under the Local Government Act 2019 (NT), which provides that each municipal council in the Northern Territory is a body corporate with perpetual succession and a common seal (s.31). Mrs Stonhill submitted that Katherine Town Council is incorporated in a Territory and satisfies the statutory criteria in s.789FD(3) of the FW Act.

• [31] Mrs Stonhill submitted that there is no requirement under the FW Act that such a body engage in trading or financial activities in order to fall within the scope of a constitutionally-covered business. Mrs Stonhill submitted that the status of incorporation within a Territory is, in itself, sufficient to enliven the jurisdiction of the Commission. Mrs Stonhill submitted that this interpretation has been consistently recognised in Commission practice and is supported by the plain wording of the legislation.

• [32] Mrs Stonhill submitted that on this basis, the Council is a "constitutionally covered business" and Mrs Stonhill, as its Chief Executive Officer, is a 'worker' within the meaning of s.789FC(2). Mrs Stonhill submitted, therefore, the Commission has jurisdiction to hear the application for a stop bullying order.

Functional Analogy Between Elected Councillor and Non-Executive Director

• [33] Mrs Stonhill submitted that Councillor Kingdon, as an elected councillor of a municipal body corporate under the Local Government Act 2019 (NT), performs functions that are functionally analogous to those of a non-executive director (NED) of a corporate entity. Mrs Stonhill submitted that although Councillor Kingdon does not manage the Council's operations on a day-to-day basis, they participate in critical employer functions, including the appointment, oversight, performance management, and, if necessary, the termination of the Chief Executive Officer. Mrs Stonhill submitted that these duties are carried out through Council resolutions and policy decisions, which have a direct and substantial impact on the working conditions of the CEO.

• [34] Mrs Stonhill submitted that the Commission has recognised that NEDs can be valid respondents to stop bullying applications where they:

"• Exercise oversight over senior staff (including CEOs),

• Engage in repeated unreasonable behaviour during board functions,
• Affect the workplace environment of an employee, despite not being "at work" in an operational sense."

• [35] Mrs Stonhill again cited the decision in Bowker, submitting that individuals who are not coworkers or employees may be respondents if their conduct occurs "at work" in relation to the applicant.

• [36] Mrs Stonhill cited the decision in Application by Adamson [2017] FWC 1976 (Adamson), in which Mr Adamson, the Chairperson of the Executive Board of Anangu Pitjantjatjara Yankunytjatjara Inc (APY), filed a stop bullying application against the Deputy Chairperson and the General Manager. The respondents contended that Mr Adamson, being a director, was not a 'worker' under the FW Act and thus not entitled to its protections. The Commission determined that Mr Adamson was a 'worker' as defined by the FW Act, emphasising that the definition encompasses individuals who carry out work in any capacity for a person conducting a business or undertaking. The Commission noted that Mr Adamson's responsibilities and remuneration indicated he was performing work for APY. However, the application was ultimately dismissed because Mr Adamson was no longer in his role at the time of the hearing, eliminating the risk of continued bullying - a necessary condition for the Commission to issue a stop bullying order.

• [37] As to the present case, Mrs Stonhill submitted that Councillor Kingdon's assertion that they are not subject to a stop bullying application due to their status as an elected member misunderstands the scope of the FW Act. Mrs Stonhill submitted that the FW Act does not limit respondents to employees or direct co-workers. As confirmed in Adamson, individuals in governance or board-level positions may fall within the anti-bullying jurisdiction where their conduct occurs "at work" and in connection with a worker's duties. In that matter, the Chairperson of the Executive Board of APY Inc was held to be a 'worker' under the FW Act, and the Commission provisionally accepted that board-level peers could be respondents. At paragraph [77], Commissioner Hampton observed that the Chairperson's involvement in meetings, governance functions, and decision-making was sufficient to constitute 'work'. and therefore the statutory protections applied.

• [38] Mrs Stonhill submitted that, similarly, elected members of a local council, such as Councillor Kingdon, who participate in governance, oversight, or performance management functions affecting the Chief Executive Officer are engaged in conduct that is plainly "at work" in relation to the CEO. Mrs Stonhill submitted that the statutory focus is not on formal employment status, but on whether the conduct occurred in connection with Mrs Stonhill's work duties. Mrs Stonhill submitted that, accordingly, Councillor Kingdon may properly be named under s.789FC of the FW Act.

• [39] Mrs Stonhill submitted that the purpose of Part 6-4B of the FW Act is preventative: it aims to stop harm in the workplace and maintain safe working environments. Mrs Stonhill submitted that the Commission has emphasised that the anti-bullying provisions are designed to protect all workers who are subject to repeated unreasonable conduct, regardless of their position within the workplace hierarchy.

• [40] Mrs Stonhill submitted that to exclude councillors, who have the power to appoint, supervise, and terminate the CEO, from the operation of this jurisdiction would:

• Leave senior employees without a forum to address harm caused by governance-level figures, and
• Be inconsistent with how similar actors (e.g., board members, NEDs) are treated under the Act."

• [41] Mrs Stonhill submitted that the importance of protecting senior employees from workplace bullying was highlighted in the case of Jo Tarnawsky v Commonwealth of Australia & Ors (2024) (Jo Tarnawsky). In this case, Jo Tarnawsky, a senior government employee, alleged bullying conduct from a subordinate staff member and raised issues of exclusion, belittlement, and procedural unfairness. Despite her senior position, the alleged conduct still posed a significant risk to her health and safety, illustrating that bullying can occur irrespective of hierarchical status. Mrs Stonhill submitted that this case demonstrates that senior employees are not immune from workplace bullying and that allowing bullying by governance-level figures to go unaddressed would create a gap in the protective framework of the FW Act. Mrs Stonhill submitted that if councillors, who have employer-like powers over the CEO, were excluded from the anti-bullying jurisdiction, it would leave senior employees without effective recourse against harmful conduct. Mrs Stonhill submitted that this would contradict the FW Act's aim to provide comprehensive protection in the workplace.

• [42] Mrs Stonhill submitted that the Commission has accepted that NEDs and other governance-level figures can be valid respondents under Part 6-4B. Mrs Stonhill submitted the rationale is that they exercise significant oversight and influence over the employment and working conditions of senior staff, similar to councillors in a local government setting. Mrs Stonhill submitted that failing to treat councillors similarly would create an inconsistent application of workplace protections, contrary to the FW Act's intent.

• [43] Mrs Stonhill submitted that the Jo Tarnawsky case reinforces the principle that all workers, including senior employees, must have access to anti-bullying protections, regardless of the bully's rank or governance role. Mrs Stonhill submitted that it is in the public interest to ensure that councillors, who can exercise employer-like powers, are held to the same standards as other governance-level figures within constitutionally covered businesses. Mrs Stonhill submitted that allowing councillors to be respondents to anti-bullying applications ensures consistency, fairness, and the fulfilment of the preventative purpose of the FW Act.

• [44] For all of the above reasons, Mrs Stonhill submitted that:

"• The Respondent is an individual who engaged in conduct at work;

• The Respondent performs governance and employer-like functions within a constitutionally-covered business;
• The analogy to non-executive directors is appropriate and compelling in both law and policy;
• The application is properly within the Commission's jurisdiction, and the Respondent is a valid party under s.789FD(1)."

• [45] Mrs Stonhill submitted that the Commission should dismiss any jurisdictional objection and allow the matter to proceed to a determination on the merits.

• [46] Mayor Elisabeth Clark provided brief submissions as follows.

• [47] Mayor Clark submitted that Katherine Town Council is a municipal council incorporated under the Local Government Act 2019 (NT). As such, it is a body corporate incorporated in a Territory, and the Council understands this to fall within the meaning of a "constitutionally covered business" for the purposes of s.789FD(3)(c) of the FW Act.

• [48] Mayor Clark submitted that under the relevant local government legislation, the Council collectively holds responsibilities relating to the appointment, performance oversight and employment terms of the CEO. These functions are exercised by the Council as a governing body comprising of Councillors acting in accordance with their statutory duties.

• [49] Mayor Clark submitted that the Council takes no position on the substantive allegations made in this matter. However, for the limited purpose of assisting the Commission with jurisdictional clarification, the Council:

"a. Acknowledges its status as a body corporate incorporated in a Territory.

b. Notes that the commission has in other context considered that individuals in governance roles e.g. board members or non-executive directors may fall within the scope of the anti-bullying jurisdiction where they engage with workers in a work-related context."

• [50] Mayor Clark submitted that the Council did not otherwise seek to make any submission about whether Councillor Kingdon meets the statutory definition of an individual for the purposes of s.789FD(1) and deferred to the Commission's role in assessing the relevant legal and factual issues.

• [51] In her reply submissions, Councillor Kingdon noted that throughout the Form F72 application, Mrs Stonhill has referred to Councillor Kingdon as 'Councillor Kingdon'. Councillor Kingdon submitted that nowhere in her Form F72 application has Mrs Stonhill ever claimed that 'Councillor Kingdon' was not acting as a 'Councillor' as defined in s.44 of the Local Government Act 2019 (NT). Councillor Kingdon submitted that it was only after she filed her written submissions of 2 May 2025 that Mrs Stonhill:

"...changed the narrative and is now seeking to desperately move the goal posts and has now attempted to introduce this new novel claim that the conduct of "Councillor Kingdon" was in the capacity as an individual and not in the capacity as a "Councillor" as defined in section 44 of the Local Government Act (2019) of the Northern Territory Parliament."

• [52] Councillor Kingdon submitted that the Commission should reject this claim by Mrs Stonhill because Mrs Stonhill has conceded in her Form F72 application that all her interactions with 'Councillor Kingdon' have been whilst 'Councillor Kingdon' is performing her role as defined in section 44 of the Local Government Act 2019 (NT), not as an individual citizen of the Northern Territory of Australia.

• [53] Councillor Kingdon referred to Mrs Stonhill's submissions, stating that they "may have been provided by the Applicant's external lawyers, possibly paid for by the Katherine Town Council" and "are a (sic) novel, creative, nonsensical, misconstrued and are a desperate attempt to save this application by the Applicant which is on life support and is destined to be dismissed because the Fair Work Commission does not have jurisdiction to deal with this application". Councillor Kingdon provided excerpts of Mrs Stonhill's submissions, which are not repeated here.

• [54] Councillor Kingdon submitted that the decision in Bowker, as cited by Mrs Stonhill, is not on point because that decision does not deal with an elected councillor of a local government council in the Northern Territory of Australia, nor does it deal with sections 4 and 5(5) of the WHS Act or s.5(5) of the Work Health and Safety (National Uniform Legislation) Act 2011 (NT). Rather, this Full Bench decision deals with persons who perform work for a private sector employer.

• [55] Councillor Kingdon maintained that a consideration of the meaning of "person conducting a business or undertaking" is key in this matter. Councillor Kingdon submitted that as a Councillor, she is not a person conducting a business or undertaking, as confirmed in s.5(5) of the Work Health and Safety (National Uniform Legislation) Act 2011 (NT), which provides that:-

"An elected member of a local government council does not in that capacity conduct a business or undertaking."

• [56] Councillor Kingdon reiterated and continued to rely on her earlier submissions in this regard.

• [57] Councillor Kingdon submitted that the decision in Adamson, as relied on by Mrs Stonhill, is also not on point because that decision does not deal with an elected councillor of a local government council in the Northern Territory of Australia, nor does it deal with sections 4 and 5(5) of the WHS Act or s.5(5) of the Work Health and Safety (National Uniform Legislation) Act 2011 (NT). Rather, this decision deals with an applicant who is the Chairperson of the Executive Board of the Anangu Pitjantjatjara Yankunytjatjara Inc (APY Inc) whereby this organisation is incorporated by the Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA) (APY Act).

• [58] As to Mrs Stonhill's reference to the Federal Court of Australia case Jo Tarnawsky, a former chief of staff of the Deputy Prime Minister Richard Marles MHR, Councillor Kingdon submitted that this is irrelevant and emotive subjective commentary. Councillor Kingdon noted that case does not deal with an elected councillor of a local government council in the Northern Territory of Australia or the relevant sections of the Work Health and Safety legislation, and further, the case has now settled.

• [59] Councillor Kingdon sought to clarify that the relevant 'respondent' in this matter is 'Councillor Amanda Kingdon' and not the Katherine Town Council. In response to the submissions of Mayor Clark, Councillor Kingdon submitted that the Katherine Town Council is not a party to this application and as such, the fact it may be a "constitutional covered business" for the purposes of the FW Act is not a relevant determinant for this Commission matter. Councillor Kingdon submitted that Mayor Clark's submission implying that 'Councillor Amanada Kingdon' may have engaged with Mrs Stonhill as an individual is not agreed to and it is not a credible claim. Councillor Kingdon argued that Mayor Clark may be partisan towards Mrs Stonhill, and therefore, may not be impartial or balanced in her submissions.

• [60] Councillor Kingdon submitted that she did not engage with Mrs Stonhill as an individual. Councillor Kingdon submitted that she was conducting herself with Mrs Stonhill in a professional and diligent manner as a 'Councillor' as defined in section 44 of the Local Government Act 2019 (NT), seeking to keep Mrs Stonhill accountable.

• [61] Councillor Kingdon submitted that the alleged analogy of non-executive directors in the non-local government sector is simplistic commentary. Councillor Kingdon submitted this analogy is not agreed to, and does not take into account the specific circumstances of elected councillors of a local government council in the Northern Territory of Australia or the relevant sections of the Work Health and Safety legislation.

• [62] Councillor Kingdon maintained that the Commission does not have jurisdiction to deal with this application for an order to stop bullying, and that the application should be dismissed.

• [63] I have taken into account all of the submissions and evidence that have been provided by the parties.

• [64] It would appear that there has been no precedent on point for these precise circumstances. However, two cases have been decided by single members of the Commission which are analogous.

• [65] The Decision in Adamson is factually similar where Mr Adamson was the Chairperson of an Executive Board which controlled 100,000 square kilometres of land in northern South Australia. The Executive Board was comprised of elected and appointed members. The Chairperson role was not a full-time position but was paid approximately $48,000 per annum. A General Manager and a Director of Administration reported directly to the Executive Board.

• [66] In Adamson, Hampton C (as he then was) summarised Mr Adamson's role as Chairperson to include:-

"[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:

• Mr Adamson (and any other Chairperson under the APY Act) involves a person, who has successfully stood for election to the Executive Board, then being appointed by the Board to the role;

• The role of Chairperson is to call and chair the meetings of the Executive Board but has no deliberative decision making role, other than as a member of the Board, and cannot give directions to staff or make public statements on behalf of the Board except as specifically authorised by the Board to do so;

• Mr Adamson also attends the Board and other APY Inc meetings and participates in the decision making and consultative processes of the Board;

• Where authorised by the Board, the Chairperson would be expected to represent it to the APY community and in other forums; and

• Mr Adamson is, in addition to his 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 is $920.15 gross per week plus a vehicle allowance of $450 per week."

• [67] Hampton C found that Mr Adamson was in fact carrying out work in his role as Chairperson and was in fact a 'worker' for the purposes of bringing a bullying application.

• [68] In Re Cooper and ors [2017] FWC 5974 (Cooper), there were multiple applications and crossclaims between a general manager and elected councillor of the City of Burnside. Anderson DP found that the City was not a constitutional corporation and therefore denied the applications, but made a number of relevant findings in his decision:-

"[19] Mr Bagster (both applicant and respondent in these proceedings) is an elected councillor of the City of Burnside representing the Burnside Ward. He is not employed by the City of Burnside.

[24] Mr Bagster contends in response to Mr Cooper's application that the Commission has no jurisdiction to hear the claim because (a) the City of Burnside is not a "constitutionally-covered business" and (b) because he (Mr Bagster) is not the employer of Mr Cooper.

[25] The City of Burnside (through Mr Spearman) contends that the Commission lacks jurisdiction to hear and determine both Mr Cooper's and Mr Bagster's claim because the City of Burnside is not a "constitutionally-covered business". It also contends, in respect of Mr Bagster's claim, that he is not entitled to make a claim because (being an elected councillor) he is not a "worker" within the meaning of the FW Act. It also asserts that he is a member of the Defence Force.

• There is no contest that Mr Cooper was an employee of the City of Burnside at the relevant times. I have examined his contract of employment (E4). I find that he was a "worker" as defined;

• Whilst the behaviour (as alleged) occurred while Mr Cooper was "at work" in the sense that he was engaged in the performance of work or engaged in activities authorised or permitted by his employer7, he would not have been "at work" within the meaning of the anti-bullying provisions of the FW Act if the City of Burnside is not a "constitutionally covered business". I deal with this issue later in this decision;

• Mr Bagster is "an individual" and, as such, capable of being the subject of a bullying complaint. In relation to Mr Cooper's application, it is irrelevant whether Mr Bagster was or was not the employer or was or was not an employee of the Council, or was or was not operating in an elected or unelected capacity or in a voluntary or paid capacity. I find that Mr Bagster, as a councillor, is an "individual" and capable of being the subject of a bullying complaint."

• [69] In this matter, there appears to be no conflict between the parties that Katherine Town Council is a constitutional corporation. I agree with this proposition based on a plain reading of s.789FD(1)(a)(i) and (3)(b). I formally find that Katherine Town Council is a constitutional corporation. I have taken this into account.

• [70] Councillor Kingdon has referred the Commission to the decision of Watson VP in Balthazaar v Department of Human Services (Commonwealth) [2014] FWC 2076, section 5(5) of the WHS Act (Cth) and section 5(5) of the Work Health and Safety (National Uniform Legislation) Act 2011 (NT). This decision and this section of the legislation would be relevant if Councillor Kingdon was being sued or prosecuted individually for a breach of the FW Act. However, that is not the scenario in this circumstance. The 'Respondent' in this matter, correctly, is Katherine Town Council. They are the employer of the Applicant, not Councillor Kingdon. I have taken this into account.

• [71] In this matter, Councillor Kingdon is a Named Person only. Therefore, for the Commission to have jurisdiction to deal with the application, Councillor Kingdon simply needs to be found to be an 'individual'.

• [72] Mrs Stonhill is the CEO of Katherine Town Council. It is not in dispute, and I find, that Mrs Stonhill is an employee and therefore a 'worker' for the purposes of s.789FC(1) of the FW Act. I have taken this into account.

• [73] I am satisfied and find that the alleged bullying behaviour of Councillor Kingdon occurred whilst Mrs Stonhill was at work.

• [74] Whilst I agree with the view of Hampton C in Anderson that the Chair of the Board could be identified as a 'worker', the issue of whether someone is a 'worker' is only necessary for an applicant under this section of the Act. There is no need for an alleged bully to actually be a 'worker', they simply need to be an 'individual' to satisfy s.789FD(1)(a)(i). I have taken this into account.

• [75] I accept that the actions of Councillor Kingdon occurred whilst performing her role as an elected Councillor of Katherine Town Council, however, that is not the relevant test. It would not matter if Councillor Kingdon was just a member of the public, if her conduct was determined to be "bullying" then that behaviour could be the subject of a stop bullying order from the Commission. In Re Manderson [2015] FWC 8231 (Manderson), it was held that the legislation covered the conduct of residents and property owners towards an employee of a residential resort. Based on the obiter in Manderson, Bowker and Cooper I am satisfied and find that Councillor Kingdon is an individual.

• [76] I have previously found that Mrs Stonhill was a worker on the basis that she is an employee of a constitutional corporation. I have also previously found that Councillor Kingdon is an individual for the purposes of the FW Act.

• [77] As a result, I am satisfied and find that Mrs Stonhill is entitled to the protections afforded to employees under the bullying provisions of the FW Act if, in fact, she has been bullied.

• [78] For the above reasons, the jurisdictional objection raised by Councillor Kingdon is dismissed.

• [79] Directions for the substantive application will be issued in due course.

[1] Bowker v DP World Melbourne Ltd [2014] FWCFB 9227 at [48].

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