Commissioner Peter Hampton of the Fair Work Commission (FWC) has provided some clarity as to whether a volunteer can apply for a stop bullying order in his decision in the matter of Gaylene May McDonald [2016] FWC 300 (McDonald Case).

Section 789FC of the Fair Work Act 2009 (Cth) (FW Act) allows a “worker” (as defined) who has a “reasonable belief” that they are being bullied at work to apply to the FWC for a stop bullying order.

A “worker” for the purposes of the FW Act is given the same meaning as a “worker” under the Work Health and Safety Act 2011 (Cth) (WHS Act) (with some exemptions such as for members of the defence forces).

A worker is defined to be an individual who performs work in any capacity for a person conducting a business or undertaking (PCBU) whether as an employee, a contractor, a subcontractor, an outworker, an apprentice, a trainee, a student gaining work experience or a volunteer.  Therefore, volunteers are able to apply for stop bullying orders (with some exceptions).

In the McDonald Case, Commissioner Hampton provided guidance as to when a “volunteer” would 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 PCBU.

In the McDonald case, the parties agreed that Mrs McDonald was a volunteer and there were no employees employed by the Cooktown School of Arts Society (CSAS).

So what is a ‘community purpose’? Unfortunately, there is no clear definition of a “community purpose.” However, Commissioner Hampton referred to the Explanatory Memorandum of the WHS Act which provides that a ‘community purpose’ is intended to cover purposes such as:

  • philanthropic or benevolent purposes, including the promotion of art, culture, science, religion, education, medicine or charity, and
  • sporting recreational purposes, including the benefiting of sporting or recreational clubs or associations.

Commissioner Hampton also noted that even if Mrs McDonald was considered to be a “worker” for the purposes of the FW Act, she would need to be a volunteer for a PCBU and not a volunteer for a voluntary association in order for the FW Act to apply.

Commissioner Hampton determined that based on the information provided, CSAS involved a group of volunteers working together for a community purpose – being the operation of the gallery and the encouragement, education and promotion of the local artists, by local artists for the benefit of the local community. On this basis, Commissioner Hampton concluded that CSAS was not a PCBU and was therefore excluded by the operation of section 5(8) WHS Act.

As CSAS was not a PCBU, Ms McDonald was ineligible to make her claim.

 

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