Fair Work Act 2009

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

Applications for an FWC order to stop bullying - preliminary issues - applicants seeking declarations about the legal validity of meetings and decisions - alleged matters of maladministration, unauthorised actions and breaches of legislation - whether proper for Commission to deal with - nature of the Commission's jurisdiction and powers considered - nature and impact of the issues upon the parties and these proceedings considered - Commission able to consider the alleged conduct but not to declare the legal validity of the meetings and decisions more generally - considerable legal uncertainty without such a determination for the parties and for these applications - discretion to be exercised - applications to be held in abeyance pending judicial review or other action - liberty to apply granted.

[1] This decision deals with some preliminary issues that have arisen in the context of two related applications made under s.789FC of the Fair Work Act 2009 (the FW Act) for orders to stop workplace bullying. The two applications have been made by Mr Murray George and Mr Frank Young respectively, and both hold elected positions on the Executive Board of the Anangu Pitjantjatjara Yankunytjatjara Inc (APY Inc). Mr Young is the Chairperson of that Board. Both applications name Mr Richard King, the General Manager of the APY Inc as the individual whose conduct is alleged to have led to bullying at a workplace. APY Inc is also named in the application and together with Mr King form the respondent parties.

[2] The Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA) (APY Act) provides for the vesting of title to approximately 100,000 square kilometres of lands in northern South Australia to the people known as Anangu Pitjantjatjara Yankunytjatjara. The APY Act establishes the Executive Board which consists of elected or appointed members, including a Chairperson and Deputy Chairperson. It also provides for the appointment, by the Executive Board, of a Director of Administration and General Manager. The APY Act also establishes APY Inc as a corporate entity with status, powers and functions including the capacity to sue and be sued. I have referred to the corporate entity as APY Inc to differentiate between that entity and the APY community.

[3] Some of the context for these applications is set by an earlier s.789FC application by a former Chairperson, Mr Trevor Adamson. In a decision[1] dealing with various preliminary jurisdictional issues, the Commission discussed the broad operation of the APY Act and some of the circumstances facing the Executive Board in recent years. This included some preliminary findings about whether Mr Adamson was a "worker" within the meaning of the FW Act and consideration as to whether that application was an abuse of process. In April 2017, a fresh election saw the membership of the Executive Board change and Mr Adamson was not re-elected. That had the consequence that the Commission should not further deal with that application due to the remedy provisions[2] of the FW Act.[3]

[4] The two present applications raise some of the same alleged conduct however there have been further alleged developments and a different emphasis is present in these matters. This includes a range of alleged improper and corrupt conduct.

[5] The respondent parties strongly deny the allegations and have raised a number of "jurisdictional issues" concerning the capacity of the Commission to hear and determine the applications under the anti-bullying provisions in Part 6-4B of the FW Act. These include that:

• The applicants are not a "worker" as defined by the FW Act and the conduct complained of did not occur in the context of the applicant being "at work"; and

• The applications are vexatious and an abuse of process.

[6] Amongst the many allegations now raised in the applications, the two applicants allege that there have been two meetings conducted under the APY Act and that Mr King has not acted consistently with the resolutions arising from those meetings and is obstructing the implementation of those decisions. Those two meetings involve a Special General Meeting on 27 March 2017 (the SGM) and a Special Executive Meeting on 23 June 2017 (the SEM).

[7] The applicants contend that amongst the business properly conducted in those meetings, the following decisions were taken:

• The termination of Mr King's employment and the removal of any permit he has to enter or remain on the APY lands;

• The cancellation, without any concession that a valid retainer was ever in place, of any retainers and permits (to enter the lands) in relation to the services of a number of lawyers including Johnston Withers and Mr Graham Harbord;

• The appointment of Finlaysons lawyers to provide advice to the APY Inc and to represent it in various matters on the instructions of the Chairperson;

• The reprimanding and suspension of Mr King; and

• The reversal of various employment and other decisions apparently taken by Mr King including those affecting the employment and dismissal of other employees of the APY Inc.

[8] The status and outcomes of the SGM and SEM are in dispute and amongst other matters, the applicants have sought that the Commission determine the validity of the meetings and associated conduct at the outset of dealing with these matters. Further, there is a dispute about whether Johnston Withers (who is seeking to represent the respondent parties and has made submissions in these matters) is now, or has ever been, properly engaged to act for the APY Inc and whether the submissions that are being made on behalf of the APY Inc are proper, given that dispute.

[9] During a preliminary conference conducted by the Commission on 11 August 2017, the representative of the applicants confirmed the importance of the Commission dealing with the legal status of the two meetings. Indeed, it was contended that it would be "fundamentally wrong to allow the (s.789FC) applications to go forward without determining the issues of invalidity of (the SGM and SEM)".[4] Having heard from the parties, I raised the question as to whether this was an appropriate course of action. That is, whilst the status of those meetings was fundamental to the proper conduct of the affairs of the APY Inc, and could have a direct bearing upon these applications, I sought submissions from the parties as to whether it was proper and appropriate for the Commission to purport to deal with those matters in the context of these applications.

[10] Mr Chambers, who is representing the applicants, contends as follows in relation to this aspect:

• The Commission can and should determine the SGM and SEM validity issues as the conduct associated with these matters constitutes bullying behaviour;

• The Commission has jurisdiction to determine facts and questions of law as to whether bullying conduct has taken place;

• The minutes of these meetings are prima facie evidence of the meetings and no interpretation is required;

• The retainer of Johnston Withers is a factual matter with associated questions of law and the Commission has the jurisdiction under s.587 to determine whether permission should be given for parties to be represented;

• The respondent parties have put these matters into issue via their responses to the s.789FC applications and these should now be determined by the Commission; and

• Any question of the wider application of findings made by the Commission in terms of "res judicata, issue and anshun estoppel" outside of the Commission proceedings is a separate and unrelated consideration.

[11] The applicants also contend that:

• The actions of Mr King and the present circumstances mean that the APY Inc is not able to access independent legal advice despite the Executive Board making decisions to obtain that advice;

• These actions also mean that in practice, Mr King is using the resources of the APY Inc to fund Johnston Withers for his own defence contrary to the resolutions of the SEM;

• The objections taken by Mr King to these proceedings are designed to obstruct and delay the process;

• Johnston Withers has more than a professional interest in these matters, they have not sought to prove that they hold a retainer despite the evidence of the SGM and SEM proving the contrary and they should not be given permission to represent the respondent parties. If this occurs, the "retainer challenge" will fall away; and

• Criminal and civil proceedings are now "in the works in relation to Mr King's abuses".

[12] In summary, the applicants contend that the Commission is the only effective and cost-efficient access to the judicial branch of government that is open to the Anangu at this time.

[13] Mr Harbord,[5] who made submissions on behalf of the respondent parties, contends that the Commission does not have the jurisdiction to make findings on matters such as the validity of the SGM or SEM, whether Mr King continues to be validly employed by the APY Inc, and whether or not Johnston Withers is properly retained by the APY Inc.

[14] The respondent parties rely upon the following to support that position:

• The Commission is not a Court of record and does not have the power to interpret State legislation, and in particular, to interpret and determine the validity of the decisions and actions made under the APY Act;

• The jurisdiction of the Commission is conferred explicitly by statute and is limited to that jurisdiction;

• The Commission does not have inherent powers of the type exercised by a Court of record; and

• Any such findings could not be a final determination at law of such questions and the Commission could not enforce such orders.

[15] It was further contended that:

• If the applicants seek to challenge the matters that they raise, the proper course of action would be to file proceedings for judicial review in the Supreme Court of South Australia;

• The s.789FC applications should be dismissed as they are seeking orders that are not within the jurisdiction of the Commission; and

• The applications are an abuse of process as they are seeking to be used for a collateral purpose, that is, to challenge the provisions of the APY Act and the management of the APY.

[16] In the alternative, it was contended that the Commission should "strike out" those parts of the applications which seek to deal with the validity of the meetings and various decisions of Mr King, the interpretation of the APY Act, and the validity of the legal retainers and the employment of Mr King.

1. The nature of the anti-bullying jurisdiction and the role of the Commission

[17] In order to deal with the immediate issues, it is necessary to consider the nature and scope of the anti-bullying jurisdiction and the role of the Commission in that regard.

[18] This was canvassed in Adamson and I do not repeat the full discussion here.

[19] Section 789FD of the FW Act defines bullying conduct as follows:

(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."

[20] I note that there is no suggestion that APY Inc is not a constitutional corporation, and thereby, a constitutionally-covered business. Whether the two applicants are workers is an issue in dispute. Further, the alleged conduct cited in the applications is disputed and no evidence has been led, or any findings made, in that regard.

[21] The remedy provisions of the FW Act in this respect are laid out in s.789FF 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.

(2) In considering the terms of an order, the FWC must take into account:

(a) if the FWC is aware of any final or interim outcomes arising out of an investigation into the matter that is being, or has been, undertaken by another person or body - those outcomes; and

(b) if the FWC is aware of any procedure available to the worker to resolve grievances or disputes - that procedure; and

(c) if the FWC is aware of any final or interim outcomes arising out of any procedure available to the worker to resolve grievances or disputes - those outcomes; and

[22] Having regard to the provisions of the FW Act, there are, amongst other matters, two prerequisites to the making of substantive orders in matters of this kind.[6] Firstly, a finding that the worker has been bullied at work by an individual or a group of individuals; and secondly, that there is a risk that the applicant worker will continue to be bullied at work by the individual or group concerned.

[23] Where such a future risk is found, the Commission may make an order preventing the worker from being further bullied by that individual or group. This means that any orders must be directed towards the prevention of relevant future unreasonable conduct and be informed by, but not necessarily limited to, the prior unreasonable conduct as found. However, any substantive orders must deal with the actual future risk, based upon appropriate findings, and having regard to the considerations established by s.789FF(2) of the FW Act.

[24] Subject to the above, and the constraint that a substantive order cannot be made requiring payment of a pecuniary amount, the making of an order is a matter of discretion to be exercised in the circumstances of each case.

[25] Accordingly, the power of the Commission to grant an order is limited to preventing the applicant workers from being (further) bullied at work, and the focus is on enabling normal working relationships to resume in a mutually safe and productive manner.

[26] The Commission is established by the FW Act[7] and it has the functions that are expressly conferred by that Act.[8] The Commission does not have inherent powers and is not a Court of record.

[27] The broader powers of the Commission are set out in, or informed by, various provisions of the FW Act including the following:

• The Object in s.3;

• The obligation in s.789FE to commence to deal with s.789FC (anti-bullying) applications expeditiously;

• The fact that the anti-bullying powers of the Commission are intended to be an additional, rather than substitute, jurisdiction;[9]

• The powers of the Commission in s.590 to, subject to the terms of the FW Act, inform itself in relation to any matter as it considers appropriate; and
• The fact that the Commission is not bound by the rules of evidence and procedure as confirmed by s.591.

[28] Sections 577 and 578 of the FW Act also provide as follows:

The FWC must perform its functions and exercise its powers in a manner that:

(a) Is fair and just; and

(b) Is quick, informal and avoids unnecessary technicalities; and

(c) Is open and transparent; and

(d) Promotes harmonious and cooperative workplace relations.

Note: The President is also responsible for ensuring that the FWC performs its functions and exercises its powers efficiently etc. (see section 581).

578 Matters the FWC must take into account in performing functions etc

In performing functions or exercising powers, in relation to a matter, under a part of this Act (including this Part), the FWC must take into account:

(a) The objects of this Act, and any objects of the part of this Act; and

(b) Equity, good conscience and the merits of the matter; and

(c) The need to respect and value the diversity of the work force by helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social origin."

[29] It is uncontroversial that the Commission has the jurisdiction to make findings about its own jurisdiction. In the context of anti-bullying applications, this includes making findings about whether applicants are workers, whether the workplaces are constitutionally-covered businesses, and whether alleged conduct is workplace bullying conduct, with all of the legal and practical issues that these findings create.

[30] I would also accept that the Commission might need to form some views about the apparent legal validity of various decisions and actions in order to determine its jurisdiction to deal with matters. For example, assuming the Commission otherwise had jurisdiction, this could include forming a view about whether the conduct of the parties in light of the purported resolutions was unreasonable so as to potentially form part of findings relevant to s.789FD of the FW Act - whether there has been bullying conduct.[10] In forming those views, even on these and other legal questions, the Commission is not exercising judicial power.

[31] For this and other purposes, the Commission may also have regard to legislation made by State Parliaments, in this case South Australia, and other instruments, and determine relevant legal and factual issues provided they properly arise within a jurisdiction established by the FW Act.

[32] However, even when the Commission needs to form a view on a legal question in order to find or exercise its jurisdiction in matters of this particular nature,[11] those views do not of themselves actually declare the legal rights more generally.[12] For example, the Commission could not conclusively determine for purposes beyond its jurisdiction whether the SGM and SEM, were at law validly convened or whether the apparent resolutions were at law validly passed and complied with the various requirements of the APY Act. Ultimately, only a Court of competent jurisdiction (a Court of record) could make a binding declaration on those matters.

1. How should the Commission now deal with these applications?

[33] In these matters, it is apparent to me that the applicants are, in effect, seeking declarations about the legal validity of the meetings and other actions in their own right, not simply as a basis for the anti-bullying applications. This is different to the emphasis taken in Adamson and arises from the nature and focus of the applications themselves and the submissions made about how these matters should be progressed.

[34] As outlined earlier, this does not mean that alleged conduct in and around those meetings and other matters is not potentially relevant to these applications. That is, the alleged conduct could be considered as part of the substance of the s.789FC applications, but this is not in reality the substantive purpose behind the applicants seeking the Commission's decision on those particular elements.

[35] Ultimately, the present circumstances require the Commission to exercise discretion about how the applications are to be dealt with.

[36] Given all of the circumstances, there are two broad options open to the Commission; being:

• To proceed with the applications including dealing with preliminary jurisdictional issues apparently raised by the respondent parties, but not so as to purport to make any declarations about the legal validity of the meetings and certain other actions more generally; or

• Adjourn the applications pending the proper determination of the issues associated with the SGM and SEM, and related decisions, by a Court.

[37] There are various competing considerations that bear upon that discretion. They include:

• The consequences of a delay given the circumstances of the parties and the statutory scheme that requires the Commission commence to deal with s.789FC applications expeditiously (which has already occurred) and focuses upon the continuation of the relationships;

• The fact that none of the parties have sought, or appear to be open to, any conciliation or other alternative dispute resolution processes that might advance these matters without a decision being made by the Commission or the Court;

• The circumstances of the applicants including the apparent lack of access to resources that might readily fund Court proceedings;

• The fundamental uncertainty that exists about the proper status of the parties, including Mr King and some other employees of the APY Inc, and the status of various purported decisions of the Executive Board and Mr King that have impacts well beyond the matters that this Commission can consider and deal with. This includes various serious (mutual) allegations of malfeasance and improper administration and the fact that the legal dispute runs the very real risk of making the administration and management of APY Inc unworkable;

• The fact that the purported determination of some of these issues by the Commission might well add to existing legal uncertainty with all of the unhelpful consequences for the parties and the Anangu more generally; and

• The impact of all of that uncertainty upon the Commission's capacity to properly and effectively deal with these applications, including uncertainty about what interests are properly represented and whether the relevant relationships are on foot.

[38] Ideally, the APY Inc itself should take the appropriate steps to have the issue of the legal validity of the SGM and SEM and related decisions determined. It has the resources and ultimate responsibilities under the APY Act.

[39] I recognise however that there is a fundamental dispute between the parties about the control and management of APY Inc and this complicates the steps that might be taken to achieve the above. In that light, I note that there might be access to pro bono assistance that could be provided to the applicants (and other parties) through various schemes in relation to Court proceedings. Indeed, in that respect I note that such resources have been alluded to in various correspondence provided on behalf of the applicants to the Commission in connection with this matter. Further, the Supreme Court has a broad discretion to make interim orders that might address access to APY Inc funds and the representation of interests, and the relevant State Minister also has various powers under the APY Act that might be utilised to assist the proper resolution of these matters by the Court.

[40] On balance, I consider that the Commission should not attempt to substantially hear the applications until the significant issues associated with the broader legal validity or otherwise of the SGM and SEM and associated decisions of the Executive Board and Mr King have been properly dealt with in a manner consistent with the above views. Further, I do not consider that it is appropriate for the Commission itself to purport to do so, given all of the circumstances now evident.

[41] Given my findings, I will adjourn these applications with liberty to apply.

[42] I anticipate that the applicants (or the APY Inc) will seek to advance the issues associated with the validity of the SGM and SEM and related matters before the Court as soon as is possible. If that occurs, then these applications can be further progressed in light of any decisions that are made, should that be appropriate. If no judicial review or similar Court proceedings are ultimately heard, all parties will have liberty to apply to the Commission in light of those developments.

[43] I would emphasise to all parties that the Commission has made no finding about the veracity of the various (and competing) allegations made by them in these matters.

After receiving final submissions in this matter and just prior to the delivery of this decision, an informal application was made on behalf of the applicants seeking that the Commission make certain interim orders. That application was made on the basis of a series of further serious allegations about the misuse of APY Inc resources and other actions claimed to be in breach of the APY Act and the resolutions of the SGM and SEM. These allegations are untested and not supported by any evidence. A position was advanced in response strongly denying the allegations and opposing the application. Giving its timing, I have not heard substantially from the parties and have not dealt with that application.

Given my findings in this decision, my preliminary view is that the same legal and discretionary issues would arise in that case, along with the question as to whether the Commission should make interim orders given some of the other preliminary jurisdictional issues that have also been raised. However, I have not determined a final position on that aspect and would not do so prior to properly hearing from all parties, and if appropriate, receiving and considering relevant evidence. Further, the parties have not yet had the benefit of reading this decision and understanding the basis upon which the s.789FC applications are to be held in abeyance.

What is clear is that the nature of the allegations now being made are very serious and of a different character, with much broader potential consequences, than those initially raised in Adamson. If these allegations are to be pursued, the priority should be to raise them in a forum that can directly and decisively deal with them and not as a subset of an application that is largely directed to another purpose. There are also real natural justice considerations pertaining to Mr King and many other parties relevant to how and where allegations of this nature are to be raised and dealt with. Further, given the nature of the APY Act, the relevant State Minister should be advised.

G Harbord, of Johnston Withers entered an appearance on behalf of the Anangu Pitjantjatjara Yankunytjatjara Inc and Mr King.

[1] Trevor Yawirki Adamson [2017] FWC 1976 (Adamson).

[4] Written submissions on behalf of the applicants dated 11 August 2017.

[5] Mr Harbord was given permission under s.596 of the FW Act to represent the relevant parties only for the purposes of the preliminary conference given the nature of those proceedings, the preliminary issues that had arisen and the complexity associated with those matters. He did not need permission to file the subsequent written submissions given the operation of the Fair Work Commission Rules 2013 - Rule 12(1)(b) and (c).and no decision about the retainer issue has been made by the Commission to this point.

[6] I leave aside the capacity to make interim orders under s.589 of the FW Act.

[10] See Adamson at [90] to [96].

[11] It should be noted that where the Commission is exercising its private arbitration powers under s.739 of the FW Act, its role and powers are different. Although under previous legislation, see Construction, Forestry, Mining and Energy Union v The Australian Industrial Relations Commission [2001] HCA 16; (2001) 203 CLR 645 and Gordonstone Coal Management Pty Ltd v Australian Industrial Relations Commission [1999] FCA 298; (1999) 93 FCR 153.

[12] The Commission may also establish legal rights in determining matters including by establishing or varying minimum standards and awarding remedies under its various jurisdictions. These rights are enforceable under the FW Act.

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