Piefke [2022] FWC 1138 (12 May 2022)

Fair Work Act 2009

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

Application for an order to stop bullying and sexual harassment.

• [1] On 29 March 2022, Mr Jeffrey Lyndon Piefke applied for orders to stop bullying and sexual harassment at work under s.789FC of the Fair Work Act 2009. The application relates to Mr Piefke's former employment with Rio Tinto Aluminium Limited, and his subsequent work and/or efforts to obtain work as a contractor to Rio Tinto. Mr Piefke last worked for Rio Tinto as a contractor in 2021. In 2022, before this application was made, Mr Piefke undertook a short period of on‑board training with a contractor to Rio Tinto until his site access was withdrawn and he was told that he was unable to be employed.

• [2] It is necessary to make some brief observations arising from matters disclosed by the materials. Firstly, and though I make no findings about it, Mr Piefke does appear to have been exposed to conduct of a sexual nature while at work for Rio Tinto that could readily be described as sexual harassment. To the extent that it has not done so already, Rio Tinto should properly investigate the incident recorded on CCTV footage on 11 July 2017 and take appropriate action in line with its obligations under work health and safety legislation.

• [3] Secondly, one of the reasons given by Mr Piefke for this application is so that he can obtain a certificate in connection with a claim in the Federal Circuit and Family Court of Australia. Certificates issued by the Commission as a pre-condition to federal court applications are relevant to applications made under sections 365 and 773 of the Fair Work Act 2009 (see ss.368(3) and ss.776(3)). This is not such an application. There is no requirement for a certificate of the type sought by Mr Piefke in connection with an application for orders to stop bullying and/or sexual harassment.

• [4] Turning to the matter at hand, Mr Piefke has filed a substantial volume of documents in support of his application. Rio Tinto has also filed material in response. The materials confirm that Mr Piefke is no longer a 'worker' nor 'at work' in the business of Rio Tinto, and that there is no reasonable prospect of Mr Piefke undertaking any further work in, or for, the business.

• [5] As Mr Piefke is not a worker nor at work in the business of Rio Tinto, there is no foreseeable risk that he will continue to be bullied or sexually harassed while at work in that business. The application has no reasonable prospects of success.[1]

• [6] The application is dismissed under section 587(1) of the Act.

[1] Grabovsky [2021] FWC 5559; Grabovsky [2020] FWC 3164.

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