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A Full Bench of the Fair Work Commission (FWC) recently upheld an appeal, confirming that a clubhouse volunteer was, in fact, a ‘worker’ for the purposes of the anti-bullying regime under the Fair Work Act 2009 (Cth) (FW Act).

Legislative Background

The FW Act provides remedies for ‘workers’ who have been bullied at work. The relevant provisions are, therefore, broader in coverage than most other aspects of the FW Act which only apply to ‘national system employees’.

A ‘worker’ is defined in the FW Act as anyone who “carries out work in any capacity for a person conducting a business or undertaking”. The FWC has often emphasised the breadth of this term, applying it to employees, independent contractors, directors, outworkers, apprentices, trainees and work experience students. However, the Full Bench’s decision in Bibawi v Stepping Stone Clubhouse Inc [2019] FWCFB 1314 is the first to confirm that the definition also extends to unpaid volunteers.

Bibawi v Stepping Stone Clubhouse Inc

The Respondent, Stepping Stone, is a community organisation, which provides services and support for people living with mental illness. The Applicant, Mr Bibawi, was a member and a voluntary participant in its mental health program. Since 2012, he also spent eight hours a week handling petty cash and performing data input, orientation and tours as part of the organisation’s offerings.

Mr Bibawi alleged that employees of the Clubhouse intimidated, threatened and stalked him before banning him from the service for a month last year.

Initially, the FWC found that Mr Bibawi could not apply for anti-bullying orders because he was not a ‘worker’ in the relevant sense. However, the FWC full bench observed that there was nothing in the FW Act’s definition of a ‘worker’ that excluded Mr Bibawi because there is no requirement that ‘work’ be performed for any particular purpose. Further, Mr Bibawi’s status as a client of the organisation did not change the fact that he also ‘performed work’ for the Clubhouse, albeit as a volunteer.

Lessons

  • The FW Act’s anti-bullying protections are very broad in their coverage and will be available to any applicant who ‘performs work’ in most organisations.
  • Taking reasonable measures to mitigate the risks of workplace bullying should be a priority for all employers, including because of the virtually unlimited range of intrusive (non-pecuniary) remedies that can follow a finding of bullying. For example, previous stop-bullying orders have required employers to move an applicant’s office, change workplace reporting lines and implement educational training courses.
  • Any entity responsible for the supervision of workers is also obliged under OHS laws to take proactive steps to monitor, manage and prevent bullying in the workplace. This should include the implementation of up-to-date policies and procedures and regular training.

If you would like further information in relation to anti-bullying laws or training, or if you require tailored and practical assistance with your training or policies and procedures, please contact our Employment, Safety and Migration team.

 

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Fair Work Commission ‘Volunteers’ Covered by Anti-Bullying Laws

12 April 2019

A Full Bench of the Fair Work Commission (FWC) recently upheld an appeal, confirming that a clubhouse volunteer was, in fact, a ‘worker’ for the purposes of the anti-bullying regime under the Fair Work Act 2009 (Cth) (FW Act).

Legislative Background

The FW Act provides remedies for ‘workers’ who have been bullied at work. The relevant provisions are, therefore, broader in coverage than most other aspects of the FW Act which only apply to ‘national system employees’.

A ‘worker’ is defined in the FW Act as anyone who “carries out work in any capacity for a person conducting a business or undertaking”. The FWC has often emphasised the breadth of this term, applying it to employees, independent contractors, directors, outworkers, apprentices, trainees and work experience students. However, the Full Bench’s decision in Bibawi v Stepping Stone Clubhouse Inc [2019] FWCFB 1314 is the first to confirm that the definition also extends to unpaid volunteers.

Bibawi v Stepping Stone Clubhouse Inc

The Respondent, Stepping Stone, is a community organisation, which provides services and support for people living with mental illness. The Applicant, Mr Bibawi, was a member and a voluntary participant in its mental health program. Since 2012, he also spent eight hours a week handling petty cash and performing data input, orientation and tours as part of the organisation’s offerings.

Mr Bibawi alleged that employees of the Clubhouse intimidated, threatened and stalked him before banning him from the service for a month last year.

Initially, the FWC found that Mr Bibawi could not apply for anti-bullying orders because he was not a ‘worker’ in the relevant sense. However, the FWC full bench observed that there was nothing in the FW Act’s definition of a ‘worker’ that excluded Mr Bibawi because there is no requirement that ‘work’ be performed for any particular purpose. Further, Mr Bibawi’s status as a client of the organisation did not change the fact that he also ‘performed work’ for the Clubhouse, albeit as a volunteer.

Lessons

  • The FW Act’s anti-bullying protections are very broad in their coverage and will be available to any applicant who ‘performs work’ in most organisations.
  • Taking reasonable measures to mitigate the risks of workplace bullying should be a priority for all employers, including because of the virtually unlimited range of intrusive (non-pecuniary) remedies that can follow a finding of bullying. For example, previous stop-bullying orders have required employers to move an applicant’s office, change workplace reporting lines and implement educational training courses.
  • Any entity responsible for the supervision of workers is also obliged under OHS laws to take proactive steps to monitor, manage and prevent bullying in the workplace. This should include the implementation of up-to-date policies and procedures and regular training.

If you would like further information in relation to anti-bullying laws or training, or if you require tailored and practical assistance with your training or policies and procedures, please contact our Employment, Safety and Migration team.