[2023] FWC 2902	

FAIR WORK COMMISSION	
DECISION	

Fair Work Act 2009 
s.789FC - Application for an order to stop bullying
Lindsay Cameron
(SO2023/43)
COMMISSIONER SCHNEIDER	PERTH, 3 NOVEMBER 2023	
Application for an FWC order to stop bullying

[1]	On 27 January 2023, Mr Lindsay Cameron (the Applicant) lodged an application with the Fair Work Commission (the Commission), pursuant to section 789FC of the Fair Work Act 2009 (Cth) (the Act). 

[2]	The Applicant alleges that he has been bullied at work during his engagement with The Wesleyan Methodist Church (the Employer) by two individuals (the Persons Named).

[3]	This decision concerns two jurisdictional issues identified within the matter:

•	Firstly, the Commission may lack jurisdiction to issue any orders under the Act as the Applicant may not be a “worker” as required by the Act and defined within the Work Health and Safety Act 2011 (Cth). 

•	Finally, the question of whether the Employer is a constitutionally covered business, as required for an order to be issued pursuant to section 789FD(3) of the Act. 

Legislation 

[4]	The Act’s provisions in relation to anti-bullying are contained within Part 6-4B, with section 789FD of the Act setting out the circumstances of when a worker is bullied at work. This section prescribes that the required environment for the bullying to arise within is a constitutionally-covered business.

[5]	Section 789FD of the Act reads as follows:

“789FD 	When is a worker bullied at work?

(1) A worker is bullied at work if:
(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:
(a) the person is:
(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.”

[6]	Further, section 338(2) of the Act relevantly distinguishes a constitutionally covered entity as follows: 

“338  Action to which this Part applies

(1)	This Part applies to the following action:
(a)	action taken by a constitutionally‑covered entity;
(b)	action that affects, is capable of affecting or is taken with intent to affect the activities, functions, relationships or business of a constitutionally‑covered entity;
(c)	action that consists of advising, encouraging or inciting, or action taken with intent to coerce, a constitutionally‑covered entity:
(i)	to take, or not take, particular action in relation to another person; or
(ii)	to threaten to take, or not take, particular action in relation to another person;
(d)	action taken in a Territory or a Commonwealth place;
(e)	action taken by:
(i)	a trade and commerce employer; or
(ii)	Territory employer;
that affects, is capable of affecting or is taken with intent to affect an employee of the employer;
(f)	action taken by an employee of:
(i)	a trade and commerce employer; or
(ii)	a Territory employer;
that affects, is capable of affecting or is taken with intent to affect the employee’s employer.

(2)	Each of the following is a constitutionally‑covered entity:
(a)	a constitutional corporation;
(b)	the Commonwealth;
(c)	a Commonwealth authority;
(d)	a body corporate incorporated in a Territory;
(e)	an organisation…”

[7]	The Constitution provides the definition of “constitutional corporation”, at paragraph 51(xx), as: 

“51.  Legislative powers of the Parliament.

The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:

…

(xx.) Foreign corporations, and trading or financial corporations formed within
          the limits of the Commonwealth …”

[8]	A worker, for the purposes of Part 6-4B, has the same meaning as prescribed under the Work Health and Safety Act 2011 (Cth) (the WHS Act). 

[9]	Section 7 of the WHS Act defines a worker, relevantly, as follows: 

“7  Meaning of worker

(1)	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:
(a)	an employee; or
(b)	a contractor or subcontractor; or
(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
(e)	an outworker; or
(f)	an apprentice or trainee; or
(g)	a student gaining work experience; or
(h)	a volunteer; or
(i)	a person of a prescribed class…”

[10]	Section 7 of the WHS Act references a “person conducting a business or undertaking”, which is defined in Section 5 of the WHS Act, as follows:

“5  Meaning of person conducting a business or undertaking

(1)	For the purposes of this Act, a person conducts a business or undertaking:
(a)	whether the person conducts the business or undertaking alone or with others; and
(b)	whether or not the business or undertaking is conducted for profit or gain.

(2)	A business or undertaking conducted by a person includes a business or undertaking conducted by a partnership or an unincorporated association.

(3)	If a business or undertaking is conducted by a partnership (other than an incorporated partnership), a reference in this Act to a person conducting the business or undertaking is to be read as a reference to each partner in the partnership.

(4)	A person does not conduct a business or undertaking to the extent that the person is engaged solely as a worker in, or as an officer of, that business or undertaking.

(5)	An elected member of a local authority does not in that capacity conduct a business or undertaking.

(6)	The regulations may specify the circumstances in which a person may be taken not to be a person who conducts a business or undertaking for the purposes of this Act or any provision of this Act.

(7)	A volunteer association does not conduct a business or undertaking for the purposes of this Act.

(8)	In this section, volunteer association means a group of volunteers working together for 1 or more community purposes where none of the volunteers, whether alone or jointly with any other volunteers, employs any person to carry out work for the volunteer association.”

Evidence – Submissions

[11]	The Employer provided submissions which confirmed the following points. 

•	The National Conference of the Wesleyan Methodist Church (the Church) of Australia acts as the chief governing board of the Church.  

•	The Church’s operations in Australia are divided into five districts. 

•	There are Local Churches within each district. 

•	Each District and each Local Church have their own ABN and ACNC registration and each District.

•	A Local Church pays their own Pastor or any additional employees (where applicable). 

[12]	The Wesleyan Methodist Church of Australia has five part time employees, including the: 

•	National Superintendent;

•	National Treasurer; and

•	Office Manager. 

[13]	The Employer submits that it is not a constitutionally covered entity as it has limited trading activities and all funds raised go towards religious activities. 

[14]	The Employer contends that all properties are either owned by the Wesleyan Methodist Church Property Trust or the Wesleyan Methodist Church of Australia, in Queensland. 

[15]	The Wesleyan Methodist Church Property Trust owns two investment properties in Tullamarine and Broadmeadows. The rental income from the investment properties is used to pay off the property loans and any excess funds are used towards promoting the Church in Australia. 

[16]	The Employer asserts that some Local Churches may also rent space to other community groups and any funds received would be retained at a Local Church level. The Employer asserts this would be of minimal value. 

[17]	The Employer states that the major operational revenue of the Church is from each Local Church collecting tithes and offerings from members. 

[18]	The Employer contends that 10% of all general donations from within the Local Churches is passed on as a contribution towards the operation of the District and National Church operations. The Employer further submits that, of the 10% passed on from the Local Churches, 70% goes to the District and 30% to the National Church. 

[19]	The Applicant, in response to the Employer’s submissions, provided a copy of the Handbook of the Wesleyan Methodist Church. Relevantly, the Applicant highlights the section of the Handbook that relates to Corporations. 

[20]	The Applicant asserts that the structure of the Church means that there is limited self-governance in place at a District or Local Church level. However, the Applicant is of the position that the National Conference is the peak governing body of the Church overall. 

Consideration

Is the Applicant a “worker”?

[21]	The Employer has confirmed that, whilst many of the “workers” at a Local Church level are volunteers, it does retain some paid employees to assist its operations. 

[22]	On assessment of the materials before the Commission, I am satisfied that the Employer is not a volunteer association, in which case it would be excluded from the definition of a person conducting a business or undertaking pursuant to section 5(7) of the WHS Act, in accordance with the definition provided under section 5(8) of the WHS Act.

[23]	It follows that the Employer is a person conducting a business or undertaking as defined in section 5 of the WHS Act.

[24]	Accordingly, I am satisfied that the unpaid volunteers, that the Employer relies upon in its operations, satisfy the definition of worker under section 7(1)(f) of the WHS Act. 

[25]	Consequently, the Applicant satisfies the definition of worker for the purposes of the Act and does not face issue in pursuing this application on that ground.

[26]	The jurisdictional objection, that the Applicant is not a worker, is dismissed.

Is the Employer a constitutionally covered entity (constitutional corporation)?

[27]	The Commission only has jurisdiction to make an order under section 789FF of the Act if, amongst other prerequisites, the Applicant is at work in a constitutionally covered entity.

[28]	Where the Employer is not a constitutionally covered entity, there will be no reasonable prospect of success of an application for an order to stop bullying.

[29]	The Act provides the definition of constitutionally covered entity, as quoted earlier, as included several types of entities. 

[30]	I am satisfied that, in the circumstances of this matter, the relevant question is whether the Employer is a constitutional corporation, as the other entity types listed in the Act are plainly not applicable. 

[31]	The Employer submits that each distinct District and Local Church has its own ABN and an ACNC. 

[32]	There is no doubt that the Employer is a charity and is focused, principally, on the promotion of its religious beliefs in the community. 

[33]	However, the fact that the Employer is a religious entity does not exclude a finding that it could be a constitutional corporation.  

[34]	In Aboriginal Legal Service of WA Inc v Lawrence [No 2] (ALS) the Western Australian Court of Appeal examined a number of High Court decisions which dealt with the test to be applied in determining whether or not a corporation should be categorised as a trading corporation for the purposes of paragraph 51(xx) of the Constitution. 

[35]	In ALS, the Court summarised the principles that might be drawn to assist in a conclusion on this question:

“68. The more relevant (for present purposes) principles that might be drawn from these and other cases are as follows:

(1) A corporation may be a trading corporation even though trading is not its predominant activity: Adamson at 239; State Superannuation Board at 303-304; Tasmanian Dam case at 156, 240, 293; Quickenden at [49]-[51], [101]; Hardeman at [18].

(2) However, trading must be a substantial and not merely a peripheral activity: Adamson at 208, 234, 239; State Superannuation Board at 303-304; Hughes v Western Australian Cricket Association (Inc) (1986) 19 FCR 10 at 20; Fencott at 622; Tasmanian Dam case at 156, 240, 293; Mid Density at 584; Hardeman at [22].

(3) In this context, “trading” is not given a narrow construction. It extends beyond buying and selling to business activities carried on with a view to earning revenue and includes trade in services: Ku-ring-gai at 139, 159-160; Adamson at 235; Actors and Announcers Equity Association of Australia v Fontana Films Pty Ltd (1982) 150 CLR 169 at 184-185, 203; Bevanere Pty Ltd v Lubidineuse (1985) 7 FCR 325 at 330; Quickenden at [101].

(4) The making of a profit is not an essential prerequisite to trade, but it is a usual concomitant: St George County Council at 539, 563, 569; Ku-ring-gai at 140, 167; Adamson at 219; E at 343, 345; Pellow at [28].

(5) The ends which a corporation seeks to serve by trading are irrelevant to its description: St George County Council at 543, 569; Ku-ring-gai at 160; State Superannuation Board at 304-306; E at 343. Consequently, the fact that the trading activities are conducted is the public interest or for a public purpose will not necessarily exclude the categorisation of those activities as “trade”: St George County Council at 543 (Barwick CJ); Tasmanian Dam case at 156 (Mason J).

(6) Whether the trading activities of an incorporated body are sufficient to justify its categorisations as a “trading corporation” is a question of fact and degree: Adamson at 234 (Mason J); State Superannuation Board at 304; Fencott at 589; Quickenden at [52], [101]; Mid Density at 584.

(7) The current activities of the corporation, while an important criterion for determining its characterisation, are not the only criterion. Regard must also be had to the intended purpose of the corporation, although a corporation that carries on trading activities can be found to be a trading corporation even if it was not originally established to trade: State Superannuation Board at 294-295, 304-305; Fencott at 588-589, 602, 611, 622-624; Hughes at 20; Quickenden at [101]; E at 344; Hardeman at [18].

(8) The commercial nature of an activity is an element in deciding whether the activity is in trade or trading: Adamson at 209, 211; Ku-ring-gai at 139, 142, 160, 167; Bevanere at 330; Hughes at 19-20; E at 343; Fowler; Hardeman at [26].”

[36]	The Employer confirmed that it owns two investment properties, the income from these properties is used to cover the loan and to assist in funding other activities of the Employer in Australia. 

[37]	The Employer’s other properties derive a minimal income from renting space or access to other community organisations.

[38]	The Employer’s only other source of income is in the collection of the tithes or offerings from the congregation members. 

[39]	Adopting the principles set out above, on the information before me, I am satisfied the Employer does not engage in trading. Even applying the broad construction of trading, on assessment of the materials before the Commission, I cannot identify any activities engaged in by the Employer that would support such a finding. 

[40]	If I have erred, and the Employer indeed engages in trading, as a question of fact and degree, I am not satisfied that such trading would support the conclusion that it is a trading corporation.

[41]	I am satisfied that any revenue generated by the Employer is incidental, and the little revenue that is generated is not so substantial that it would support a conclusion that it is a trading corporation. I find that, if the Employer does indeed trade, such trading activities are merely peripheral.

[42]	On assessment of the materials currently before me, there is nothing to suggest that that the Employer is otherwise a constitutional corporation.

Conclusion

[43]	I have concluded that the Applicant is a worker for the purpose of the Act. 

[44]	However, having concluded that the Employer is not a constitutional corporation the application is out of jurisdiction. 

[45]	An Order dismissing the application will be issued. 

COMMISSIONER