McRae [2025] FWC 1199 (2 May 2025)

Application for an order to stop bullying at work -whether bullying occurred while at work in a constitutionally covered business

• [1] On 27 November 2024, Ms Samantha McRae applied for orders to stop bullying at work under s.789FC of the Fair Work Act 2009 (the Act). The application was made in relation to her employment at Ascot Vale Heights School (the School) and a person with whom Ms McRae interacted while at work at the School. The School is a Victorian government school.

• [2] The Secretary to the Department of Education and Training objects to the application on two grounds: firstly, that School is not a constitutionally-covered business for the purposes of Part 6-4B of the Act[1] and secondly, that Ms McRae was not a "worker" at the time of her making the application.

• [3] For the reasons that follow, the objections are upheld. The School is not a constitutionally-covered business for the purposes of Part 6-4B of the Act, and Ms McRae was not a "worker" at the time of the application. Accordingly, the Commission does not have jurisdiction to deal with Ms McRae's application.

Whether the School is a constitutionally-covered business

• [4] Section 789FD of the Act provides as follows:

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

(i) an individual; or

(ii) a group of individuals;

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:

(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."

• [5] The School is a Victorian government school. Ms McRae was employed to work at the School as a member of the Government teaching service. She 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) (the Education Act). The Secretary, on behalf of the Crown, employs teachers in the teaching service. Under Part 5.3 of the Education Act, the Secretary has all the rights, powers, authorities and duties of an employer in respect of employees in the teaching service. While as a matter of practice, the Secretary delegates responsibility for the efficient organisation, management and administration of schools to School Principals, the Secretary retains control and direction over the exercise of those responsibilities.

• [6] As the Secretary acts on behalf of the Crown in right of the State of Victoria, the State is the 'person' who conducts the business of Victorian government schools including the School. It does so through the Department and its Secretary.

• [7] The meaning of "constitutionally-covered business" is set out in s.789FD(3). A business or undertaking is a constitutionally-covered business if a person conducts a business or undertaking (within the meaning of the Work Health and Safety Act) and one of the descriptions in s.789FD(3)(a) or (b) applies to the person or business/undertaking.

• [8] 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 for the purposes of s.789FD(3)(b). The School is not a body corporate incorporated in a Territory (as per s.789FD(3)(a)(iv)) and it is not a Commonwealth authority (as per s.789FD(3)(a)(iii)). The Victorian Government is not the Commonwealth (including for the purposes of s.789FD(3)(a)(ii)).

• [9] That leaves the question of whether the School is a constitutional corporation for the purposes of s.789FD(3)(a)(i). "Constitutional corporation" is defined in s. 12 of the Act as "a corporation to which paragraph 51(xx) of the Constitution applies". Paragraph 51(xx) of the Constitution relevantly confers power on the Australian Parliament "to make laws... with respect to... foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth". This can be distinguished from the Commonwealth's power to make laws with respect to matters such as trade and commerce with other countries, and "among the States".

• [10] As Hampton C observed in the case of Shoshana Amzalak,[2] 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. The School is not a constitutional corporation.

Whether Ms McRae was a "worker" at the time of application

• [11] At the time of her application, Ms McRae alleged that she was suspended from her employment at Ascot Vale Heights School. This was not an accurate description of the position. Ms McRae had in fact resigned from her employment at the School. 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. It follows that, even if the Commission had jurisdiction to deal with the application, Ms McRae 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.

[1] Fair Work Act 2009, s. 789FD(3)

[2] [2016] FWC 6590.

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