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

• [1] Stephen Sims has applied to the Commission for an order to stop bullying at work under section 789FC of the Fair Work Act 2009. The application alleges that Mr Sims was bullied at work while he was acting in his capacity as a director of the Murray Grey Beef Cattle Society Limited ("Society"). He claims that the perpetrator of the bullying was another director of the Society, Guy Burnett.

• [2] The matter came before me for hearing today. After an exchange with the parties, and in particular Mr Sims, I informed Mr Sims that I had determined to dismiss his application. This was on the basis that he was no longer a "worker" within the meaning of section 789FC(2) and that consequently I could not be satisfied that "there is a risk that [he] will continue to be bullied at work" as required by section 789FF(1)(b)(ii).

• [3] I informed the parties that I would set out the reasons for my determination in writing. These are those reasons.

• [4] In their initial responses to the application, the Society and Mr Burnett raised a jurisdictional objection. They contended that Mr Sims was not a "worker" and so not entitled to commence proceedings under section 789FC(1).

• [5] I dismissed that objection. In my decision doing so,[1] I made the following observations:

"[22] There is no controversy that Mr Sims carries out work for the Society. Neither the Society nor Mr Burnett disputed Mr Sims's description of the work he does and has done. I am satisfied that the work performed by Mr Sims is for the Society.

[26] On the information available to me, I am satisfied that the Society is a PCBU and that as a director of the Society Mr Sims carries out work for it. He is a 'worker' within the meaning of s 7(1) of the Work Health and Safety Act and, by extension, s 789FC(2) of the Fair Work Act."

• [6] In the material that he filed in anticipation of today's hearing, Mr Sims stated that he did not renominate for election as a director of the Society. The Society's material also suggested that Mr Sims was no longer a director.

• [7] At today's hearing, Mr Sims confirmed that he is no longer a director of the Society. He stated that he was "just a member of the Society now". I asked him how, having regard to the reasoning in my earlier decision, he considered himself a "worker" within the meaning of the Act. I also asked how I could be satisfied that there was a risk that he would continue to be bullied "at work".

• [8] Mr Sims stated that in the future he might attend "shows and field days" at which he would come into contact with other members of the Society. However, he conceded that he would not be doing so as a representative of the Society or performing work for the Society.

• [9] On the information available to me, Mr Sims is no longer a worker within the meaning of section 789FC(2). He does not carry out work for the Society.[2]

• [10] It follows that there is no risk that Mr Sims will continue to be bullied at work by Mr Burnett. (I make no finding as to whether Mr Sims had been bullied at work as alleged in his application.) Such a risk is a mandatory pre-condition to the Commission making an order to stop bullying under section 789FF. Consequently, the Commission could make no orders in the matter.

• [11] As a result, Mr Sims's application had no reasonable prospects of success.[3] The only appropriate order was that the application be dismissed.

John Contarino, on behalf of the Murray Grey Beef Cattle Society Limited

[1] Stephen Sims v Murray Grey Beef Cattle Society Limited and Guy Burnett [2025] FWC 667

[2] See Stephen Sims v Murray Grey Beef Cattle Society Limited and Guy Burnett [2025] FWC 667 at [5]- [7]

[3] Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank; Bianca Haines [2014] FWC 3408 at [17]

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