The Full Bench of the Fair Work Commission (Commission) has confirmed that the protection from bullying in the Fair Work Act 2009 (Act) is broad enough to cover volunteers. The decision in Bibawi v Stepping Stone Clubhouse Inc t/a Stepping Stone & Others[1] highlights that organisations with volunteers, including volunteer board members, may be subject to the FWC’s stop-bullying jurisdiction.
Background
Stepping Stone Clubhouse Inc (Stepping Stone), an organisation which provides services for people living with mental illness, runs programs whereby members can volunteer in work units to develop self-esteem, and social and vocational skills. Mr Bibawi volunteered as a member in the Clerical, Administration and Technology Unit and assisted with general clerical duties.
Mr Bibawi lodged an application for stop-bullying orders against Stepping Stone and named individuals, and claimed that he was subjected to bullying while he was a volunteer member with Stepping Stone.
To be eligible to seek a stop-bullying order, a person must be a ‘worker’ as defined in the Act. Stepping Stone argued that Mr Bibawi was not a worker
At the first instance, the Commission found that the relationship between Mr Bibawi and Stepping Stone was not “work” of a paid or unpaid type that would be done by a volunteer, but rather it was done as part of a program, funded by the Government to improve the well-being and mental health of its participants such as Mr Bibawi.
However on appeal, the Full Bench held that the definition of “worker”, which has the same as in the Work Health and Safety Act 2011 (WHS Act), is very broad, requiring the following two elements to be met:
- the person must carry out work ‘in any capacity’; and
- the work must be carried out for a person conducting a business or undertaking.
The Full Bench found that Mr Bibawi performed work for Stepping Stone, and despite such work being performed as part of a program funded by the Government, there is nothing in section 7 of the WHS Act which would exclude Mr Bibawi from the definition of worker. It was immaterial that Mr Bibawi’s work was also intended to improve his health and wellbeing, because “there may be a wide range of motivations and objectives attaching to the performance of such work”.
Not-for-profit organisations that engage volunteers to assist with their activities should be mindful that people who volunteer in programs and perform work may be a ‘worker’ eligible to make a stop-bullying application.
The case also illustrates the importance of educating all workers, including volunteers, about their rights and responsibilities in relation to bullying, and ensuring that your policies and procedures apply to all people who perform work on behalf of your organisation.
How we can help
If you require assistance to manage and respond to a stop bullying application, or want to be sure your current policies and procedures are consistent with your legal obligations, please do not hesitate to contact us.