Federal Court of Australia

Bartlett v Commonwealth of Australia [2025] FCA 1107

ORDERS

THE COURT ORDERS THAT:

1.    Prayer 3 of the First Respondent’s interlocutory application dated 20 December 2024 be dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

PERRAM J

1    Now for determination is a pleading issue in an employment case. The applicant, Mr Bartlett, was employed by the Commonwealth as a member of the staff of Ms Swanson, the member for the Federal seat of Paterson. His employment with the Commonwealth came to an end on 9 August 2023 when Ms Swanson informed Mr Bartlett his employment had been terminated.

2    Relevantly for present purposes, Mr Bartlett makes two allegations in the second further amended statement of claim (the ‘2nd FASOC’) about the events leading up to his termination. The first of these is an allegation that the Commonwealth breached its contract of employment with him by not ensuring his health and safety whilst in its employ: §§11, 121(p).

3    The second is that Mr Bartlett had complained about a number of matters (set out at §136A) and, as a result of those complaints, the Commonwealth omitted to take steps to ensure that his health and safety were protected in accordance with his contract of employment: §§136A,‍ 136B.

4    Both of these are allegations that the Commonwealth failed to comply with a contractual duty to ensure Mr Bartlett’s health and safety whilst in its employ: §11. Mr Bartlett emphasised that he is not pursuing a case for damages for breach of contract: T17.27-30. That said, I would note that allegations of breach of contract are made at §§11 and 145 of the 2nd FASOC and that the originating application claims damages for breach of contract at prayer for relief No.‍ 21 (‘An order that the First Respondent pay the Applicant damages resulting from the first Respondent’s breaches of the Contract set out in the Statement of Claim’). I proceed therefore on the assumption that by inter partes correspondence these claims for damages for breach of contract have been waived.

5    On that assumption, what Mr Bartlett now claims is not damages for breach of contract but rather compensation under the Fair Work Act 2009 (Cth) (the ‘FW Act’) for breaches of that Act. There is no other conceivable reading of §146 of the 2nd FASOC:

The Applicant has suffered psychiatric injury as a result of the breaches of the FW Act and/or the breaches of the contract.

6    As §146 shows, Mr Bartlett’s claim for compensation is a claim for compensation for psychiatric harm resulting from breaches of the FW Act, that is to say, it is a personal injury claim. As the passage above shows, although once it was pleaded as a claim for damages for breach of contract, that claim has been dropped.

7    The relevance of the psychiatric harm case is that it may be susceptible to being characterised as a case concerned with an injury sustained by an employee of the Commonwealth in the course of his or her employment. If so, this might then engage s 44 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the ‘SRC Act’). It is headed ‘Action for Damages not to lie against Commonwealth etc. in certain cases’ and provides:

(1) Subject to section 45, an action or other proceeding for damages does not lie against the Commonwealth, a Commonwealth authority, a licensed corporation or an employee in respect of:

(a) an injury sustained by an employee in the course of his or her employment, being an injury in respect of which the Commonwealth, Commonwealth authority or licensed corporation would, but for this subsection, be liable (whether vicariously or otherwise) for damages; or

(b) the loss of, or damage to, property used by an employee resulting from such an injury;

whether that injury, loss or damage occurred before or after the commencement of this section.

(2) Subsection (1) does not apply in relation to an action or proceeding instituted before the commencement of this section.

(3) If:

(a) an employee has suffered an injury in the course of his or her employment; and

(b) that injury results in that employee’s death;

subsection (1) does not prevent a dependant of that employee bringing an action against the Commonwealth, a Commonwealth authority, a licensed corporation or another employee in respect of the death of the first-mentioned employee.

(4) Subsection (3) applies whether or not the deceased employee, before his or her death, had made an election under subsection 45(1).

8    Although s 44 is expressly subjected to s 45, it is not suggested in this case that s 45 has any relevance. It is also not in dispute that: (a) s 44 prevents Mr Bartlett suing the Commonwealth for common law damages for the psychiatric harm he alleges he has suffered; and (b) that s 44 ousts not only claims in the tort of negligence against the Commonwealth but also contractual claims having the same substantive content. Both involve common law claims for injuries suffered in the course of employment.

9    The dispute between the parties now is whether Mr Bartlett’s claim to compensation under the FW Act for breaching the health and safety term in his employment contract for a proscribed reason under s 340 of that Act is a claim for damages to which s 44 of the SRC Act applies.

10    It is established that s 44 does not exclude claims for compensation for personal injury which arises under other statutory regimes. For example, it has been held that this Court may award compensation under s 46PO(4)(d) of the Australian Human Rights Commission Act 1986 (Cth) for personal injury arising out of breaches of discrimination legislation such as the Disability Discrimination Act 1992 (Cth) and the Sex Discrimination Act 1984 (Cth) and that s 44 of the SRC Act presents no bar to such claims: Comcare v Friend [2024] FCAFC 4; 301 FCR 617 (‘Comcare v Friend’) at 642-643 [77] per Wheelahan J (Rangiah J at [1] and Goodman J at [97] agreeing). As the Court there explained, s 44 of the SRC Act is concerned with common law actions for damages.

11    I see no reason why that approach would not apply to claims for personal injury made under the FW Act. As in Comcare v Friend, a statutory claim for compensation for personal injury under the provisions of the FW Act is not a common law action for damages of the kind to which s 44 is addressed.

12    The question then is one of characterisation. It is whether Mr Bartlett’s claim is to be characterised as:

(a)    a claim for common law damages for an injury sustained by Mr Bartlett in the course of his employment by the Commonwealth; or

(b)    a claim for compensation for personal injury arising under the Fair Work Act.

13    The process of characterisation requires consideration of the precise nature of Mr Bartlett’s claims. There are four aspects of the claim which deserve emphasis.

14    First, the claims rest on allegations that the Commonwealth took adverse action against Mr Bartlett and that it did so for one of the proscribed reasons set out in s 340 of the FW Act. The claim then is one for compensation under the FW Act for those contraventions of s 340. On the face of it, it is not a claim for damages at common law for personal injury.

15    Secondly, the adverse action that Mr Bartlett alleges the Commonwealth took against him includes the allegation at §121(p) of the 2nd FASOC that it had breached his contract of employment by not ensuring his health and safety were protected. It also includes the allegation at §136B that the Commonwealth breached his employment contract by omitting to take steps to ensure that his health and safety were protected after he made the complaints at §136A.

16    Thirdly, these allegations are allegations of omission (i.e. contractual failures to ensure Mr Bartlett’s health and safety). The Commonwealth’s actions in failing to ensure Mr Bartlett’s health and safety are alleged to have been taken place for reasons which were prohibited by s‍ 340 of the FW Act: §136 (for the allegation in §121(p)) and §136D (for the allegation at §136B).

17    Fourthly, the contraventions of the FW Act do not consist of the breaching of the health and safety term of the employment contract. Whilst Mr Bartlett nominates these breaches as the adverse action upon which he relies, the FW Act does not prohibit an employer from taking adverse action. The prohibition is instead on the taking adverse action for one of the prohibited reasons specified in s 340. It is adverse action to terminate an employee’s employment but it only becomes unlawful (for present purposes) if the termination is taken for a prohibited reason in s 340 (such as, for example, because the employee belongs to a union). In this case, therefore, the complete contravention alleged is not just the taking of adverse action by breaching the health and safety term, it is doing so for a prohibited reason.

18    Having regard to those matters, I do not accept, at least for the purposes of a strike out application, that Mr Bartlett’s claim for compensation under the FW Act discloses no reasonable cause of action because of s 44 of the SRC Act. Such a conclusion should only be reached in plain and obvious cases: Polar Aviation Pty Ltd v Civil Aviation Safety Authority [2012] FCAFC 97; 203 FCR 325 at [42] and [44] (Perram, Dodds-Streeton and Griffiths JJ).

19    I am unpersuaded that the Commonwealth’s submission satisfies that standard for two reasons. First, there can be no doubt that Mr Bartlett’s claim is for compensation for personal injury under the FW Act. Mr Bartlett therefore starts a long way ahead in the debate because, in principle, this brings the claim within Comcare v Friend. Secondly, whilst the adverse action which Mr Bartlett complains of consists of a breach of the implied term of health and safety in the employment contract, I am far from persuaded that this means that it is not arguable that the claim is not a common law claim for damages to which s 44 of the SRC Act applies.

20    I therefore reject the Commonwealth’s claims to strike out §§121(p) and 136B of the 2nd FASOC and dismiss prayer 3 of its interlocutory application filed on 20 December 2024. Prayers 1 and 2 were separately disposed of by orders made in chambers. There should be no order as to costs having regard to s 570 of the FW Act.

Associate:

Dated:    10 September 2025