Fair Work Act 2009

Section 789FC - Application for an order to stop bullying

Application for an FWC order to stop bullying - representation - non-corporate Commonwealth entity - permission not required - jurisdiction - immunity from suit against current and former Commission members - whether advocate acting for litigant wife is a "worker" or "at work" - jurisdiction not established - application dismissed

[1] On 21 October 2019 Mr Igor Grabovsky (Mr Grabovsky or the Applicant) applied to the Commission under section 789FC of the Fair Work Act 2009 (Cth) (FW Act) for an order to prevent bullying at work (the stop bullying application).[1]

[2] Mr Grabovsky is a lay advocate on behalf of his wife in past and current proceedings before the Commission and claims to have been subjected to bullying conduct by the Commission and its members in the course of those proceedings and in decisions and orders.

[3] The employer named is a Commonwealth statutory authority, the Fair Work Commission (the Commission).

[4] Mr Grabovsky's application also names[2] twenty-five persons he asserts have engaged in bullying conduct and from whom he is at future risk of bullying, being nineteen existing members of the Commission, four retired members and two management employees or officers of the administrative arm of the Commission (collectively referred to as 'the persons named').

[5] This decision determines a jurisdictional challenge by the Commonwealth of Australia (Commonwealth) on behalf of the Commission.

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

[7] On 18 November 2019 a response to the application was filed by the Australian Government Solicitor (AGS) on behalf of the Commonwealth. The response raised five jurisdictional issues:

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

• that Mr Grabovsky was not "at work" at the relevant times for the purposes of the stop 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 stop bullying provisions of the FW Act;

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

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

[8] The AGS advised that it represents the Commission as an entity of the Commonwealth, not the persons named.

[9] I conducted a directions hearing on 9 December 2019. Mr Grabovsky was self-represented. An officer of the Australian Government Solicitor, Ms Ablett, appeared for the Commonwealth on instructions from the Commission. An officer of the Commission (Ms Scarlett) was also present.

[10] No person named appeared though three such persons (former Deputy President Gooley, and current members Commissioner Bissett and Commissioner Wilson) notified their interest in proceedings and of their inability to attend the directions hearing.

[11] At the directions hearing I delivered ex tempore decisions on representation and on recusal. I subsequently published a Statement[3] providing reasons for those decisions together with directions on case management.[4]

[12] On representation I provisionally decided:

"[29] ...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."

[13] On Mr Grabovsky's application to recuse myself, I decided:

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

[36] 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.

[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.

[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."

[15] I set dates for filing materials on jurisdiction.

[16] I received written submissions on jurisdiction from the Commonwealth on 24 December 2019 and 28 January 2020. The Commonwealth's reply submission included an affidavit from an officer of the Commission, Mr Lambalk.

[17] I received written materials from Mr Grabovsky on 14 January 2020 with the following disclaimer:

"This submission does not constitute compliance with the FWC directions made by Anderson DP because the law considers the FWC directions as illegal."

[18] I did not receive submissions from persons named beyond a submission of 5 December 2019 from former Deputy President Gooley.

[19] Mr Grabovsky appealed the interlocutory decisions of 9 and 10 December 2019.

[20] An application for a stay was refused.[5] By decision of 20 March 2020[6] the appeal was dismissed.

[21] I issued a further Statement on 31 March 2020[7] in which I said:

"In light of the Full Bench decision of 20 March 2020, I will now proceed to determine the jurisdictional issues raised by the Commonwealth. In making that decision I will have regard to the materials before me including the Commonwealth's response of 18 November 2019, the Commonwealth's submissions of 24 December 2019 and 28 January 2020, Mr Grabovsky's application of 21 October 2019 and his material of 14 January 2020, former Deputy President Gooley's letter of 5 December 2019, and submissions made at the directions hearing on 9 December 2019."

[22] Mr Grabovsky made a number of applications,[8] some to me, that I issue interim orders that other proceedings currently before the Commission in which he appears be suspended pending determination of his stop bullying application. For reasons set out in the Statement of 10 December 2019 I decline to do so pending determination of these jurisdictional issues.[9]

[23] Mr Grabovsky submitted documents to the Commission[10] that his stop bullying application be amended to add to Attachment A my name, the names of certain other Commission members and the name of the Commission officer who appeared alongside the AGS in these proceedings. Those matters, to the extent (if any) they are applications in proper form, have not been allocated to me for determination. I proceed to determine this matter based upon the application as filed and allocated.

[24] Mr Grabovsky appealed[11] the Statement issued on 31 March 2020. As no stay has been ordered on the course proposed following the full bench decision of 20 March 2020, I proceed in the manner indicated.

[25] Following that Statement, Mr Grabovsky forwarded documents to my chambers, including open letters.[12] Other than an open letter of 3 April 2020, those correspondences largely concern matters other than the jurisdictional issue before me. Though the Statement did not invite or require additional written submissions, I have regard to the open letter of 3 April 2020 as supplementary to Mr Grabovsky's materials in this matter.

[26] I also observe, for the sake of completeness, that no impediment exists to determining this matter. I perform this function as an independent statutory office-holder not having had prior association with proceedings concerning Mr Grabovsky or his litigant wife. Mr Grabovsky's application to recuse myself was made consequent on an interlocutory decision with which Mr Grabovsky disagreed. An appeal against that decision was dismissed. It is orthodox that a member will continue to determine proceedings in those circumstances, and I see no reason not to do so. Whilst Mr Grabovsky sought to include me (and others) in Attachment A as persons named, that is a separate matter. It would be an intolerable frustration to the administration of justice if a litigant could impede the determination of claims by seeking to name the duly appointed arbitrator as a responding person to the very litigation being arbitrated.

[27] My decision on representation was provisional. My directions of 10 December 2019 made provision for further written submissions on representation, should any person seek to do so.

[28] In its written submissions the Commonwealth re-states the grounds on which it sought to be represented. Mr Grabovsky repeats his position that representation of the Commission by the Australian Government Solicitor (AGS) is unlawful and unconstitutional.

[29] Having considered these further submissions, including in the context of matters that arise under section 596 of the FW Act, I am persuaded that the provisional decision of 9 December 2019 should be made final. The Commission is a non-corporate Commonwealth entity for the purposes of the Public Governance, Performance and Accountability Act 2013 (Cth)[13] and an officer of the AGS is an employee of the Commonwealth. The legal personality of the administrative entity that is the Commission is that of the Commonwealth. The exemption to requiring permission in section 596(4) of the FW Act applies. The Commonwealth on behalf of the Commission has the right to be represented without the need for a grant of permission. There is neither unlawfulness nor unconstitutionality in such a course. The Commission is named as the "employer/principal" in Mr Grabovsky's originating application[14]. As an entity distinct from the named persons, the administrative arm of the Commission is entitled to appear in these proceedings through the Commonwealth.

[30] In any event, were I required to exercise discretion under section 596(2) I would do so in favour of a grant of permission. The Commonwealth's jurisdictional challenge raises legal issues attended to by complexity. Those issues are appropriately put by a qualified practitioner. It is also appropriate to avoid the potential circumstance where a Commission representative is both advocate and either a named person or potentially a named person. As noted, Mr Grabovsky has sought to have the Commission officer appearing on 9 December 2019 included as a person named. Whilst I take account that Mr Grabovsky is self-represented and disparity in representation would arise, not all elements of section 596(2) need be made out. In this matter, considerations in sections 596(2)(a) and (b) would weigh more heavily in favour of a grant of permission, were that required.

[31] The provisional view on representation expressed on 9 December 2019 is the Commission's final view.

[32] Section 789FF(1) of the Act provides as follows:

(a) a worker has made an application under section 789FC; and

(i) the worker has been bullied at work by an individual or a group of individuals; and

(ii) there is a risk that the worker will continue to be bullied at work by the individual or group;

then the FWC may make any order it considers appropriate (other than an order requiring payment of a pecuniary amount) to prevent the worker from being bullied at work by the individual or group."

[33] Jurisdictional pre-requisites exist before the merits of a stop bullying application can be determined. These include that the applicant be:

• a "worker" as defined;[15]

• bullied "at work" as defined;[16] and

• the risk of future bullying at work by the same individual or group is continuing.[17]

[34] The Commonwealth raise five jurisdictional issues:

1. That Mr Grabovsky, as a lay advocate and litigant, is not a "worker" for the purposes of the stop bullying provisions of the FW Act;

2. That Mr Grabovsky was not "at work" at the relevant times for the purposes of the stop bullying provisions of the FW Act;

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

4. That members and past members of the Commission have immunity, by force of law, from such proceedings; and

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

[35] Section 580 of the FW Act provides:

"An FWC Member has, in performing his or her functions or exercising his or her powers as an FWC Member, the same protection and immunity as a Justice of the High Court."

[36] The legislature has decided on this immunity. Members of the Commission are granted the same protection from civil or criminal suit or from any obligation to give evidence or disclose any aspect of their decision-making process as applies to justices of the High Court. The statutory intention to confer judicial immunity was made clear by the explanatory memorandum to the FW Act.

[37] The purpose of this immunity is to enhance the independence of Commission members and provide freedom to make decisions not influenced by any apprehension of personal consequences.[18] The immunity is also central to the finality of litigation, and to prevent disaffected persons from relitigating grievances except through established channels of appeal or judicial review.[19]

[38] The immunity applies to a Commission member in performing his or her functions or exercising his or her powers. It applies to any civil or criminal suit while a Commission member or after ceasing to be a member.

[39] Stop bullying applications under Part 6-4B of the FW Act are civil proceedings that invoke the statutory immunity. Commission members are immune from stop bullying applications arising from the performance of their functions or exercise of their powers. Commission members could not perform functions or exercise powers 'independently' and without 'fear of favour' if they were potentially at risk of a stop bullying application being made against them by a person aggrieved by their decisions or by the exercise of statutory powers or functions.

[40] Mr Grabovsky's application names twenty-three members of the Commission (nineteen present and four former) who he alleges "are involved in the deliberate and systematic bullying of the Applicant".[20] He alleges the bullying to have occurred whilst representing his wife in both first instance[21] and appeal proceedings before the Commission.[22] He cites a number of historic and current proceedings by way of example.[23]

[41] The allegations against individual and former members of the Commission are made in the context of the performance of their functions and powers under the FW Act or demands by Mr Grabovsky that certain functions or powers be exercised.

[42] In these circumstances, each of the members and former members named in Attachment A to the originating F73 stop bullying application are protected by the immunity provided for by section 580 of the FW Act.

[43] The stop bullying application, insofar as it relates to those twenty-three persons is not able to be lawfully advanced. Insofar as it relates to those twenty-three members and former members, an order will be issued dismissing the application.

[44] There are three other responding bodies or persons referred to in the stop bullying application.

[45] The Commonwealth on behalf of the administrative arm of the Commission is a responding body, having been named by Mr Grabovsky as the alleged employer/principal[24] alongside the natural persons named (though Mr Grabovsky asserts that only natural persons can engage in bullying conduct[25]).

[46] The General Manager of the Commission is a named person, it would appear as a consequence of the statutory functions and powers she holds.

[47] The NSW manager of the Commission is also a named person. The allegation against the NSW manager appears to concern the officer's decision to exclude himself from adjudicating on Mr Grabovsky's application to waive a filing fee because he (the manager) was a person named in the application. Mr Grabovsky claims this was bullying conduct.[26]

[48] As noted, a person can only bring a stop bullying where that person is a 'worker' as defined.

[49] Section 789FC(2) of the FW Act provides:

"worker" has the same meaning as set out in the Work Health and Safety Act 2011 (Cth) (WHS Act).

[50] Section 7(1) of the WHS Act provides:

"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

[51] To be a "worker'" for these purposes:

• the person must carry out work; and

• the work must be carried out for a person conducting a business or undertaking.[27]

[52] For Mr Grabovsky to satisfy these requirements, it would need to be concluded that by assisting his wife with her proceedings before the Commission, he was working for the Commission or working for his wife with respect to a business or undertaking conducted by her.

[53] Such a conclusion is not open.

[54] Mr Grabovsky was not performing work for the Commission at the relevant times. He was an advocate assisting his litigant wife. No relationship between Mr Grabovsky and the Commission or the Commonwealth of the kind identified in section 7(1) of the WHS Act existed pursuant to which Mr Grabovsky performed work for the Commission or the Commonwealth.

[55] Further, whilst Mr Grabovsky was acting as an advocate (in his words, "a confidant"[28]) for his litigant wife there is no basis on which it can be said that his wife was undertaking a relevant business or undertaking by virtue of the proceedings she commenced. She was pursuing a civil claim, as litigant.

[56] The Work Health and Safety Regulations 2011 (Cth) do not prescribe classes of persons for the purposes of section 7(1)(i) of the WHS Act. Mr Grabovsky does not fall within section 7(1)(i) of the WHS Act.

[57] For these reasons, Mr Grabovsky is not a "worker" within the meaning of Part 6-4B of the FW Act. Nor can it be said that Mr Grabovsky was "at work" in the relevant sense (that is, in his capacity as a "worker" as defined).

[58] As stop bullying applications can only be commenced by a "worker", Mr Grabovsky's application fails for want of jurisdiction.

[59] This conclusion requires Mr Grabovsky's application to be dismissed insofar as it relates to all persons (natural or otherwise). This includes the Commission and both its General Manager and NSW manager. This conclusion is a further basis on which the application must be dismissed against members and former members of the Commission.

[60] It is not necessary, given the above, to determine each of the other jurisdictional issues raised in these proceedings.

[61] These include submissions by the Commonwealth that Mr Grabovsky could not have formed a "reasonable belief" of having been bullied at work for the purposes of the stop bullying provisions of the FW Act, and the further submission that relief sought by Mr Grabovsky cannot be lawfully ordered.

[62] It also includes the submission by former Deputy President Gooley that, at least with respect to former members, no future prospect of bullying at work exists as those members no longer perform functions and powers under the FW Act.

[63] Without determining those questions, each of these additional jurisdictional challenges are not without merit.

[64] For these reasons, the stop bullying application fails for want of jurisdiction.

[65] Having so determined, there is no basis on which to consider the interim orders application made by Mr Grabovsky concerning other proceedings in the Commission.

[66] In conjunction with the publication of this decision I issue an Order[29] dismissing the stop bullying application AB2019/601.

L. Ablett with K. Scarlett, for the Commonwealth of Australia

Commonwealth - 24 December 2019 and 28 January 2020

Person named - former Deputy President Gooley - 5 December 2019

[3] [2019] FWC 8343

[5] [2020] FWC 615

[6] [2020] FWCFB 1014

[9] [2019] FWC 8343 at [39]

[10] 28 January 2020 and 29 January 2020

[12] Open letters 16 March 2020 (x2); 25 March 2020; 3 April 2020

[13] See sections 670 and 673A FW Act and sections 10 and 11 of the Public Governance, Performance and Accountability Act 2013 (Cth)

[17] Atkinson v Killarney Properties Pty Ltd T/A Perm-A-Pleat Schoolwear and Adrian Palm [2015] FWCFB 6503 at [21]

[18] Fair Work Bill 2009 (Explanatory Memorandum) at [2254]

[19] Fingleton v The Queen [2005] HCA 34 at 36 - 40 (per Gleeson CJ) and at 125 (per Kirby J); see also Re East and Others ex part Nguyen [1998] HCA 73 and Sirros v Moore and Others [1975] 1 QB 118

[21] Grabovsky v United Protestant Association C2014/3313 [2014] FWC 5364

[23] For example, C2014/3313; C2014/6273; C2017/7037; C2017/5834; B2017/987; C2019/3690; C2019/3120; C2019/3321; C2019/5979; C2019/6622

[25] Document 14 January 2020 at 1.4, 1.11 and 1.12

[26] Document 11 November 2019 at 2.17 to 2.22

[27] Balthazaar v Department of Human Services (Commonwealth) [2014] FWC 2076 at [19]

[29] PR720259

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