FWC confirms state employees excluded from bullying jurisdiction – Workplace Express

The Fair Work Commission has reiterated that its bullying jurisdiction does not cover claims by state government school employees because neither governments nor their departments are constitutional corporations.

After earlier dismissing a claim by a WA teacher, Commissioner Peter Hampton has rejected an application by an employee of a NSW government school.

Commissioner Hampton said the employee is employed by the Crown at a NSW departmental workplace.

“Even if the Department is a separate legal entity from the State (and I make no finding in that regard), the Department and/or the State of New South Wales are not corporations within the meaning of the Constitution,” he said.

“The absence of a corporate entity means that it cannot be a constitutional corporation.”

Commissioner Hampton said that while s37 of the Fair Work Act binds the Crown “in each of its capacities”; the Fair Work Act’s application to Crown entities depends on “how the coverage of those provisions is expressed” in other parts of the legislation.

Coverage of the anti-bullying provisions, he said, is not based on the definition of national system parties, coverage of the Crown or the referral of powers by most States (including NSW), but whether the workplace is a constitutional corporation.

Commissioner Hampton said “even if bullying behaviour occurred at the particular New South Wales government school concerned”, it could not lead to a finding that the employee had been bullied at work.

A.B. [2014] FWC 6723 (30 September 2014)