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IR Update: Fair Work Commission unable to hear anti-bullying claims from volunteers

January 27, 2016

In a recent decision before the Fair Work Commission, it has been held that volunteers are unable to make anti-bullying claims against their employers, as they do not satisfy the definition of “worker” under s 789FC of the Fair Work Act 2010 (Cth).
In the facts of this case, a volunteer had brought an application for an anti-bullying order against a community arts centre in northern Queensland. The not-for-profit gallery was run by a small management committee and was established to encourage local artists through its educational programs and exhibitions.
According to the School of Arts, the Fair Work Commission was unable to hear the anti-bullying order, as the volunteer could not be classified as a “worker” under s 789FC. In the alternative, they argued that the nature of the organisation meant it was a constitutionally covered business as defined in s 789FD.
Under the Act, the term “worker” is defined by the Work Health and Safety Act 2011 as “an individual who performs work in any capacity including an employee, a contractor, a subcontractor, an outworker, an apprentice, a trainee, a student gaining work experience or a volunteer.” Despite this definition, there is an exception for those who volunteer with an association that has no employees.
In light of this, Commissioner Peter Hampton was required to determine whether the school was a business operating for profit or gain. He also considered the definition of “volunteer” in the Work Health and Safety Act 2011, which is outlined as “a person who is acting on a voluntary basis.”
The applicant argued that she was not a volunteer as she received a number of benefits from the gallery, including “in kind” payments and free membership during her time as a treasurer of the committee.
This was rejected by Commissioner Hampton, who held that the reduced payments did not turn the relationship into an employment contract. In his view, “the incentive to offer assistance in the gallery or garden would not in my view change the fundamental nature of the relationship nor the nature of the [school] itself.”
Thus, in order to meet the eligibility requirements, the applicant must have been volunteering for a person conducting a business or undertaking. Here, the School of Arts was deemed a volunteer community group with a strong community purpose and therefore Commissioner Hampton was forced to refuse the application on jurisdictional grounds.
In any case, the applicant was no longer a member of the School nor its treasurer and thus it was held that there was no need for a prevention order. “There is no apparent basis upon which the [applicant] could now be considered to be a worker … and … there would be no power for the Commission to make any orders in this matter.”
The full text of this decision can be found here.

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