Resources: Blogs

Can a volunteer apply for a stop bullying order?

Blogs
|

When is a volunteer not a volunteer (for the purpose of the FWC's anti-bullying jurisdiction)?

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).

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.

 

Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog, or from links on this website to any external website. Where applicable, liability is limited by a scheme approved under Professional Standards Legislation.

 

Similar articles

Employer found liable for workers compensation despite worker’s unreasonable perceptions

Fact or fiction

A recent decision of the New South Wales Personal Injury Commission serves as a reminder of the differing standards of proof when determining liability for claims of bullying and/or harassment under workers compensation laws and the Fair Work Act 2009 (Cth).

Read more...

Remote work environment risks and considerations

Barking up a broad tree

Work from home arrangements have become the “new normal” across many workplaces since the COVID-19 pandemic.

Read more...

Employee’s exaggerated complaints created psychosocial risk

False alarm

Employers have work health and safety obligations to eliminate or minimise psychosocial risks in the workplace so far as is reasonably practicable. These risks arise from psychosocial hazards including conflict or poor workplace relationships.

Read more...

FWO secures penalties against bar operator and external accounting firm

Closing time

The Fair Work Act 2009 (Cth) requires employers to keep certain employee records for a period of 7 years. These records are necessary to ensure that employees have been paid their minimum entitlements should an underpayment claim be made.

Read more...

Employer found liable for workers compensation despite worker’s unreasonable perceptions

Fact or fiction

A recent decision of the New South Wales Personal Injury Commission serves as a reminder of the differing standards of proof when determining liability for claims of bullying and/or harassment under workers compensation laws and the Fair Work Act 2009 (Cth).

Read more...

Commission finds employee’s flexible working request to work entirely from home was not reasonable

The worst has now passed

One of the many changes to the Fair Work Act 2009 (Cth) introduced this year include the Fair Work Commission’s new powers to deal with disputes relating to requests for flexible working arrangements.

Read more...

Let's talk

please contact our directors to discuss how ouR expertise can help your business.

We're here to help

Contact Us
Let Workplace Law become your partner in Workplace Relations.

Sign up to receive the latest industry updates with commentary from the Workplace Law team direct to your inbox.