Anti Bullying Order – worker or volunteer

Anti Bullying Order – worker or volunteer – The question as to whether a person is an employee or volunteer and whether they can apply for an Anti Bullying order was exampled in the case of McDonald [2016] FWC 300 (FWC, Commissioner Hampton, 15 January 2016)

This case was considered under section 789FC of the Fair Work Act 2009 (Cth) (the Act), that allows for an application to be made under the Act for an order to stop bullying. The applicant was a volunteer at the Cooktown School of Art Society Inc, and claimed that bullying behaviour had been directed at her over a period of five years, culminating in her exclusion from the society. The society raised jurisdictional issues in response, contending that it was not a constitutionally covered business under the Act, and that the applicant was not a worker under the Act.

The society operates a gallery which displays and sells original art works from local artists in the Cooktown area. It also assists individual artists to improve their artistic skills through learning, sharing, exhibiting and selling their art. The society is a small, community-based nonprofit association made up of individual members who join the society, and is run by a small committee. The applicant is a local artist, and helped out at the society until 15 August 2015. Her membership was cancelled on 4 September 2015.

Generally, volunteers are not considered to be workers under the Act where an incorporated association is working for community purposes and the association (and any volunteers) do not employ at least one person as an employee to work for the association. The society has no employees at its gallery. All helpers are volunteers. However, volunteers who exhibit artwork benefit from a decreased commission payable to the society.

Commissioner Hampton found that the applicant was not to be a worker. She was a volunteer within section 4 of the WHS Act

…in general terms, a volunteer is someone who enters into any service of their own free will, or who offers to perform a service or undertaking for no financial gain. The commitments shared between the parties are usually considered moral in nature, rather than legal. Payments or benefits unrelated to hours of work or the actual performance of work will not normally by themselves imply that a person is an employee. In these circumstances, any payment or benefit can more aptly be described as an ‘honorarium’ or gift…The reduced commission payments as apparently operated for Mrs McDonald would not turn what is otherwise accepted to be a volunteer relationship into that of an employment contract.

Commissioner Hampton also found that the society was not a person conducting a business or undertaking (PCBU)

“In order for Mrs McDonald to be a volunteer who is eligible to bring a s.789FC application, Mrs McDonald must be a volunteer for a PCBU, and not a volunteer in a voluntary association. In the circumstances of this matter, this requires consideration of the statutory parameters set out earlier in this decision and in particular, whether CSAS is a group of volunteers working together for one or more community purposes where none of the volunteers, whether alone or jointly with any other volunteers, employs any person to carry out work for the volunteer association. I am satisfied that the CSAS fundamentally involves a group of volunteers working together for a community purpose. That is, the operation of the gallery and the encouragement, education and promotion of the local artists, by the local artists, for the benefit of the local community as undertaken by the CSAS, means that the Society is established for one or more community purposes. This satisfies the requirements of the PCBU exclusion in s.5(8) of the WHS Act.”

In dismissing the application Commissioner Hampton found that the reduced commission arrangements were not considered to be payments made to workers. There were no workers involved in the society. Therefore, everyone involved was a volunteer. The society was not a PCBU, so the applicant could not be a worker under the Act. The FWC had no jurisdiction to decide the matter or issue an anti bullying order

Full details of the case – http://www.austlii.edu.au/au/cases/cth/FWC/2016/300.html

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