Beyond the reach of the Fair Work Act: The Fair Work Commission dismisses anti-bullying claim brought by an overseas volunteer on jurisdictional grounds.

Overview of claim

The recent decision of Stancu [2015] FWC 1999 involved an application under section 789FC of the Fair Work Act 2009 (Cth) (FW Act) for an order to stop workplace bullying. The complaint was made against Australian Volunteers International (AVI), a company that places volunteers with organisations across the globe, by Mr Stancu, a volunteer sanitation engineer placed at the Ministry of Public Works and Utilities (the Ministry) in Kiribati (a small Pacific Island nation).

The bullying allegations related to disciplinary action taken by AVI in response to complaints about Mr Stancu’s behaviour. The complaints alleged ‘drunk and disorderly’ behaviour at a dinner hosted by the President of Kiribati, downloading movies using workplace internet, wearing inappropriate clothing on the street (swimming trunks and no shirt), and inappropriate behaviour in the company of other third parties.

Jurisdictional issues

In response to the application, AVI raised a number of jurisdictional arguments including that Mr Stancu was not undertaking ‘work’ for AVI, but was in fact performing work for the Ministry, which is not subject to the anti-bullying provisions. The Commission considered whether the work performed by Mr Stancu was undertaken in a ‘constitutionally covered business’ within the meaning of the FW Act. While it was acknowledged that AVI facilitated Mr Stancu’s placement by nominating him to the Ministry, a consideration of the totality of the relationship made it clear that he ‘worked’ for the Ministry. The Ministry was the direct beneficiary of his work, had the right to terminate the relationship and determined his hours and day-to-day directions. As the Ministry is not a constitutionally covered business, the application fell outside the scope of the FW Act.

The Commission identified a further jurisdictional issue relating to the geographical limits of the coverage of the FW Act, given that the work occurred outside Australia. It was held that Mr Stancu’s work in Kiribati fell outside the FW Act’s geographical application. While some parts of the FW Act may sometimes apply extra-territorially to an Australian employer in relation to Australian-based employees (such as the NES, modern awards, minimum wages and unfair dismissal provisions), the anti-bullying provisions of the FW Act do not. This led to the conclusion that Mr Stancu’s claim was ‘beyond the reach of the FW Act in its totality’.

The Commission also found that AVI’s response to the complaints, counselling Mr Stancu and issuing him a warning, was reasonable management action and not bullying.

Implications for employers

While both AVI and the Ministry escaped the jurisdictional reach of the FW Act in this case, the Stancu decision serves as a reminder of the broad extra-territorial reach of certain parts of the FW Act in relation to employees of constitutionally covered businesses. For example, if Mr Stancu had been an employee of AVI and his employment was terminated, despite having been based outside of Australia, the outcome of a jurisdictional objection to an unfair dismissal claim would likely have been very different. Employers will be interested to see whether these broad provisions receive any attention in the review of the workplace relations framework currently being conducted by the Productivity Commission.