Fair Work Act 2009

Section 789FC - Application for an order to stop bullying

[1] This Statement records a provisional decision on representation and a decision on recusal that I made ex tempore on 9 December 2019, prior to the suspension of proceedings. To the extent required, this Statement supplements the decisions and reasons I expressed on transcript.

[2] It also outlines further directions I now issue on this matter.

[3] This Statement will be made available to the Applicant (Mr Grabovsky), to the named employer and to persons named in the application. It will also be published.

[4] On 21 October 2019 Mr Igor Grabovsky applied to the Fair Work Commission under section 789FC of the Fair Work Act 2009 (FW Act) for an order to prevent bullying at work (the anti-bullying application).

[5] Mr Grabovsky's application claims that he is a lay advocate in past and current proceedings before the Commission and that he has been subjected to bullying conduct by the Commission and its members in the course of past proceedings and in its decisions and orders.

[6] The employer named in Mr Grabovsky's application is the Fair Work Commission (FWC).

[7] Mr Grabovsky's application also names 25 persons who he asserts have and from whom he is at future risk of bullying, being nineteen existing members of the Fair Work Commission, four retired members and two management employees or officers.

[8] Mr Grabovsky paid the prescribed application fee, which was subsequently waived on his application based on serious hardship.

[9] Consistent with the Commission's regular management of anti-bullying applications, Mr Grabovsky, as Applicant, was contacted on 31 October 2019 by administrative staff of the Commission to secure clarification of his application and his intention to proceed. That intention was confirmed.

[10] On 11 November 2019 Mr Grabovsky made an application for interim orders concerning current proceedings involving Mr Grabovsky or interests he represents (including but not limited to matters C2018/3690; C2019/6622; C2019/5979) (the interim orders application). The interim orders sought are that members of the Fair Work Commission who have those matters before them "not deal with any matter concerning the dispute until determination of matter AB2019/601" (the anti-bullying application).

[11] Mr Grabovsky's application was served on the FWC and, by the Commission, on all persons named.

[12] In support of his application, on 13 November 2019 Mr Grabovsky forwarded a document headed 'Demand for President Ross to perform his statutory duty and obey the rule of law".

[13] On 18 November 2019 a response to Mr Grabovsky's anti-bullying application was filed by the Australian Government Solicitor (AGS) on behalf of the Commonwealth of Australia (the employer response). The employer response raised five jurisdictional issues:

• That Mr Grabovsky, as a lay advocate and litigant, is not a "worker" for the purposes of the anti-bullying provisions of the FW Act;

• That Mr Grabovsky was not "at work" at the relevant times for the purposes of the anti-bullying provisions of the FW Act;

• That Mr Grabovsky could not have formed a "reasonable belief" of having been bullied at work for the purposes of the anti-bullying provisions of the FW Act;

• That members and past members of the FWC have immunity, by force of law, from such proceedings; and

• The relief sought by Mr Grabovsky cannot be lawfully ordered.

[14] The employer response was served on Mr Grabovsky and the persons named.

[15] The matter (AB2019/601) was allocated to me for hearing and determination.

[16] On 21 November 2019 I caused a Notice of Listing to be issued, listing the anti-bullying application for directions on 9 December 2019, by video link.

[17] In advance of the directions hearing, the AGS provided the Commission (and Mr Grabovsky) draft minutes of an order seeking that the jurisdictional issues raised be determined as threshold issues following the lodgement of written submissions.

[18] The AGS also advised that it represents the FWC as an entity of the Commonwealth, not the persons named.

[19] Three of the persons named (former Deputy President Gooley, and current Commissioners Bissett and Wilson) notified my chambers of their interest in proceedings but advised of their inability to attend the directions hearing.

[20] The directions hearing proceeded by video conference on 9 December 2019.

[21] Mr Grabovsky was self-represented.

[22] An officer of the Australian Government Solicitor, Ms Ablett, appeared for the Commonwealth of Australia on instructions from the FWC. An employee of the FWC, Ms Scarlett, was also present.

[23] No persons named appeared.

[24] An issue concerning the FWC's representation immediately arose.

[25] Ms Ablett submitted that the AGS was entitled to appear as of right and did not require permission under section 596 of the FW Act. Her submission was that the FWC was a non corporate Commonwealth entity and that an officer of the AGS was an officer of the Commonwealth. On that basis, Ms Ablett submitted that the exemption in section 596(4)(b) of the FW Act applied such that permission was not required. The AGS referred to two full bench decisions of the Commission in support of its position: Gibbens[1] and Knight[2].

[26] In the alternative, Ms Ablett submitted that permission should be granted under section 596(2)(a) on the ground that the application would be more efficiently dealt with by the FWC being represented by the AGS having regard to complexity in light of the jurisdictional issues raised.

[27] Mr Grabovsky opposed the appearance of the AGS. He submitted that it was unconstitutional for the AGS to represent the FWC (or members or former members of the FWC for that matter) as the FWC was not exercising judicial power. He submitted that the AGS and the FWC are separate entities and not the Commonwealth of Australia. He said that the FWC could not be lawfully represented by the AGS, with or without permission. In the alternative, he submitted that the FWC response was unlawful (being filed under the hand of the AGS) and no complex issues arose. He said that it would be unfair to advance his case against the weight of lawyers and members or past members of the Commission. He sought that I postpone his anti-bullying application to enable him to take these issues up with the Attorney-General's department.[3]

[28] I delivered a provisional decision ex tempore on the representation issue.

[29] My provisional decision was that the AGS had standing as of right to appear on behalf of the Commonwealth of Australia and in that capacity was able to represent the FWC in these proceedings without requiring permission. I was satisfied that the FWC was a non corporate Commonwealth entity and that an officer of the AGS was an officer of the Commonwealth and that the exemption to requiring permission in section 596(4)(b) of the FW Act applied. I also indicated, on a provisional basis, that were I required to consider the request for permission I would grant the request for the purposes of jurisdictional proceedings as I was satisfied that section 596(a) was made out as those issues raised a significant level of complexity. I indicated that I recognised that Mr Grabovsky was self-represented and that I would, consistent with my responsibilities, ensure that he was able to fairly participate in proceedings and advance his case including on the jurisdictional issues notwithstanding being a lay advocate.

[30] I made this provisional decision for the purposes of the directions hearing and subsequent proceedings on the application, until further order. I foreshadowed that I would issue directions for further submissions on the question of representation before considering whether my provisional decision should be made final.

[31] Mr Grabovsky objected to my provisional decision on representation. I noted his objection. Mr Grabovsky made an oral application that I recuse myself. He submitted that my provisional decision was a continuation of the bullying by members of the FWC as asserted in his application. Mr Grabovsky submitted that my decision on representation was pre-determined, that I had failed to listen to his submissions, that I had not postponed proceedings as he had sought, and that I had corruptly and unlawfully failed to abide by the law in my conduct of the matter and in my provisional decision.

[32] The AGS made no submission on the recusal application.

[33] I delivered a decision ex tempore on the recusal issue.

[34] I dismissed the application for recusal on the ground that I was not satisfied that an objective observer of proceedings would consider that I was unable to bring an independent and unbiased mind to the proceedings. I rejected the submission that my provisional decision was pre-determined or objectively capable of being seen as such, or that I had in any objective sense failed to take into account Mr Grabovsky's submission or was objectively capable of being seen as not having done so.

[35] Upon the delivery of my recusal decision, I turned to issues of case management.

[36] Mr Grabovsky was directed by me not to speak over me and to await my call before addressing the Commission. Mr Grabovsky failed to do so. In light of the unruly conduct, I formed the view that the proceedings were not able to be efficiently conducted. I advised the parties that I would issue directions on case management in the absence of further proceedings, and that the parties would be advised of those directions in due course. I adjourned proceedings on that basis.

[37] I am satisfied that the jurisdictional issues raised by the AGS on behalf of the FWC require determination as threshold issues.

[38] I consider that the jurisdictional issues, raising as they do legal questions, are amenable to being determined on the papers. I consider doing so is the most efficient manner of dealing with the jurisdictional issues. Evidence does not need to be called to deal with the questions of law raised. Nor do I consider it appropriate to delay dealing with the jurisdictional issues to allow Mr Grabovsky to make private representations to the Attorney-General's department. The legal issues before me require determination. The FW Act proposes that applications of this type be dealt with as promptly as possible.[4]

[39] I also consider that until the jurisdictional issues are determined, it is inappropriate for me to deal with Mr Grabovsky's application for interim orders concerning other proceedings before the Commission. The interim orders application itself raises legal questions, such as whether a member of the Commission seized only of an application under part 6-4B of the FW Act (anti-bullying) has any power to make the orders sought. Until such time as I have an anti-bullying application that is properly before me, in the sense of an application which has lawfully invoked the anti-bullying jurisdiction and of which I am seized, it is not possible to lawfully exercise (were I able) the power to make the interim orders sought by Mr Grabovsky.

[40] I direct that the Commonwealth of Australia provide written submissions on each of the jurisdictional issues it advances by close of business (5.00pm ACDT) 24 December 2019. That date is two weeks from today's date.

[41] I direct that Mr Grabovsky file a written submission on the jurisdictional issues by close of business (5.00pm ACDT) 14 January 2020. That date is three weeks from the deadline for the Commonwealth's written submissions. I take into account this date covers the Christmas/New Year period.

[42] I will provide for a person named, if they so wish, to file a written submission on the jurisdictional issues by close of business (5.00pm ACDT) 14 January 2020.

[43] I will direct that the Commonwealth file a written submission in reply by close of business (5.00pm ACDT) 28 January 2020.

[44] I will thereafter determine the jurisdictional issues, on the papers.

[45] I will direct that Mr Grabovsky's application for interim orders concerning other proceedings in the Commission be adjourned pending my determination of the jurisdictional issues.

[46] I will also direct Mr Grabovsky and the Commonwealth, in making their written submissions on jurisdiction, to also address the view expressed by former Deputy President Gooley in her letter of 5 December 2019, being her contention that the application insofar as it concerns former members of the FWC should be withdrawn or dismissed on the basis (so it is said) that former members no longer exercise jurisdiction over proceedings and are thereby incapable of placing Mr Grabovsky at "risk" of future bullying at work within the meaning of section 789FF(1)(b) of the FW Act.

[47] On the issue of representation, subject to any further order, my provisional decision of 9 December 2019 remains.

[48] I will further direct that, should the Commonwealth or Mr Grabovsky wish to place further submissions before me on representation that they do so according to the aforementioned timetable; that is, the Commonwealth by 24 December 2019, Mr Grabovsky by 14 January 2020 and the Commonwealth in reply by 28 January 2020.

[1] Gibbens v The Commonwealth of Australia (Department of Immigration and Border Protection) [2017] FWCFB 2817, 7 July 2017

[2] Knight v Commonwealth of Australia (Australian Criminal Intelligence Commission) [2017] FWCFB 3896, 25 July 2017

[3] Following the conclusion of proceedings, Mr Grabovsky filed a written application dated 9 December 2019 making this request. The application in written form reflected the oral application and submissions made by Mr Grabovsky during proceedings on 9 December 2019

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