The need for all employers to be aware that volunteers, who may be engaged in in any capacity, are eligible to bring about a claim under anti-bullying jurisdiction has been highlighted by a recent determination of the Fair Work Commission.
While much focus has been given to the importance of preventing workplace bullying for employees, it is important for employers to remember that national anti-bullying laws also cover certain non-employees such as
- work experience students,
- contractors or subcontractors, and
Section 789FC of the Fair Work Act 2009 (Cth) allows a “worker” who has a belief that they are being bullied at work to apply to the Fair Work Commission for a stop bullying order. Traditionally, a worker has been defined as being an individual who performs work in any capacity for a person conducting a business or undertaking, whether as an employee, a contractor, a subcontractor, an outworker, an apprentice, a trainee, a student gaining work experience or a volunteer working in a non-wholly volunteer association.
Case law has historically provided that a volunteer would only be considered a “worker” for the purposes of the FW Act:
- where a person volunteers for an association that employs at least one person as an employee to work for the association; and
- where the association is working for a purpose other than a community purpose; and
- where the association is a person conducting a business or undertaking.
However, in early 2019 the scope of a “worker” was tested and had the result of broadening the coverage of the Fair Work Act 2009’s anti-bullying protections.
The case of Bibawi v Stepping Stone Clubhouse Inc (2019) is the first case to clearly confirm that anti-bullying protections are available to any applicant who ‘performs work’ in most organisations, thereby confirming that the definition of ‘worker’ actually applies to all unpaid volunteers, including those engaged by an association working for a community purpose.
In this case:
- the respondent was a community organisation which provides services and support for people living with mental illness.
- the applicant was both a member and a voluntary participant in the organisation’s mental health program.
It was alleged by the applicant that employees of the respondent had intimidated, threatened and stalked him prior to having banned him from the service for a month last year.
Since 2012, the applicant had also spent eight hours a week undertaking duties such as:
- handling petty cash
- performing data input,
- newsletter submissions,
- conducting orientations and tours
- general clerical duties
Initially, the Fair Work Commission found that the applicant was not entitled to apply for anti-bullying orders because he was not a ‘worker’ in the relevant sense. However, on appeal the FWC full bench observed that there was nothing in the FW Act’s definition of a ‘worker’ that excluded the applicant because there is no requirement that ‘work’ be performed for any particular purpose. Rather, it was held that a ‘worker’ need only perform work ‘in any capacity for’ the person conducting the business or undertaking in order to satisfy the definition.
The applicant’s status as a client of the organisation did not change the fact that he also ‘performed work’ for the respondent in the capacity of a volunteer. Nor did the fact that the work performed was intended to improve his well-being and health. As a result, it was accepted that the volunteer was a ‘worker’ as the work he performed genuinely contributed to the respondent and was of value to its day to day operations.
This finding is significant in that it demonstrates that the Fair Work anti-bullying protections are very broad in their coverage and will be available to any applicant who performs work within almost any organisation.
Should a successful bullying claim be made, there are a broad range of penalties which may be imposed (both monetary and non-monetary). Examples of previous non-monetary remedies that have been ordered by Fair Work following a finding of bullying have included stop-bullying orders which required employers to relocate an applicant’s office, change reporting lines and to employee training courses.
To minimise the potential risk of a bullying claim being lodged, all employers are encouraged to actively take reasonable measures to mitigate the risks of workplace bullying, including implementing up-to-date policies and procedures and undertaking regular training.
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