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Voluntary participant of mental health program a ‘worker’ in stop-bullying regime

Bibawi v Stepping Stone Clubhouse Inc t/a Stepping Stone & Others [2019] FWCFB 1314

The Full Bench of the Fair Work Commission has confirmed the broad application of the stop-bullying jurisdiction to volunteers. Organisations who use the services of volunteers in any capacity should be aware that they might be subject to the Commission’s jurisdiction.

Background

Stepping Stones is a ‘community organisation that provides services and support to people living with mental illness’, running programs whereby people living with mental illness can voluntarily participate in work units as ‘members’. The appellant in this matter, Mr Bibawi, volunteered in the Clerical, Administration and Technology unit. He assisted with ‘database entry, newsletter submissions, outreach to members currently not attending and general clerical duties’.

The issue

Mr Bibawi applied to the Commission for an order to stop-bullying against Stepping Stones and some named individuals.

To be eligible to seek such an order a person must be a ‘worker’ as defined in the provisions of the Fair Work Act 2009 covering stop-bullying orders. Stepping Stones argued Mr Bibawi was not a worker and were successful at first instance.

On appeal, the Full Bench referred to the very broad definition of ‘worker’, which has the same meaning in this part of the Fair Work Act 2009 as in the Work Health and Safety Act 2011. The Commission held that a ‘worker’ need only perform work ‘in any capacity for’ the person conducting the business or undertaking in order to satisfy the definition.[1] 

The Commission held that it was clear that Mr Bibawi performed work and that work contributed to the Stepping Stones Clubhouse and was of value to its operations. The Commission found that the fact that the work performed by Mr Bibawi was done so as part of a program funded by the government and that he was a ‘client’ of Stepping Stones did not exclude Mr Bibawi from the relevant definition of ‘worker’. It was also immaterial that Mr Bibawi’s work was also intended to improve his well-being and health, noting that, “there may be a wide range of motivations and objectives attaching to the performance of such work”.[2]

Key takeaways

Many public sector bodies, clubs and not for profit organisations utilise the services of volunteers to assist in their activities. These organisations should be mindful that people who participate in voluntary programs and who perform work in any capacity may be captured by the definition of ‘worker’ for the purposes of the stop-bullying jurisdiction of the Commission. These people will be eligible to make an anti-bullying application against an organisation regarding the conduct of an individual or group of individuals.

It is also important that anyone who works for an organisation in any capacity (including a volunteer capacity) receives training as to what is expected of them regarding appropriate behaviour and what they can do if they observe or feel that they have been the subject of bullying or other inappropriate behaviour.

If you would like more information or advice please contact a member of our Employment, Safety & People team.

[1] Bibawi v Stepping Stone Clubhouse Inc t/a Stepping Stone & Others [2019] FWCFB 1314 at [18].

[2] Ibid at [20].

AUTHORS
Tamsin Webster| Senior Associate
+61 3 9258 3738
E tamsin.webster@maddocks.com.au
Despina Psaras | Lawyer
+61 3 9258 3764
despina.psaras@maddocks.com.au

Bibawi v Stepping Stone Clubhouse Inc t/a Stepping Stone & Others [2019] FWCFB 1314

The Full Bench of the Fair Work Commission has confirmed the broad application of the stop-bullying jurisdiction to volunteers. Organisations who use the services of volunteers in any capacity should be aware that they might be subject to the Commission’s jurisdiction.

Background

Stepping Stones is a ‘community organisation that provides services and support to people living with mental illness’, running programs whereby people living with mental illness can voluntarily participate in work units as ‘members’. The appellant in this matter, Mr Bibawi, volunteered in the Clerical, Administration and Technology unit. He assisted with ‘database entry, newsletter submissions, outreach to members currently not attending and general clerical duties’.

The issue

Mr Bibawi applied to the Commission for an order to stop-bullying against Stepping Stones and some named individuals.

To be eligible to seek such an order a person must be a ‘worker’ as defined in the provisions of the Fair Work Act 2009 covering stop-bullying orders. Stepping Stones argued Mr Bibawi was not a worker and were successful at first instance.

On appeal, the Full Bench referred to the very broad definition of ‘worker’, which has the same meaning in this part of the Fair Work Act 2009 as in the Work Health and Safety Act 2011. The Commission held that a ‘worker’ need only perform work ‘in any capacity for’ the person conducting the business or undertaking in order to satisfy the definition.[1] 

The Commission held that it was clear that Mr Bibawi performed work and that work contributed to the Stepping Stones Clubhouse and was of value to its operations. The Commission found that the fact that the work performed by Mr Bibawi was done so as part of a program funded by the government and that he was a ‘client’ of Stepping Stones did not exclude Mr Bibawi from the relevant definition of ‘worker’. It was also immaterial that Mr Bibawi’s work was also intended to improve his well-being and health, noting that, “there may be a wide range of motivations and objectives attaching to the performance of such work”.[2]

Key takeaways

Many public sector bodies, clubs and not for profit organisations utilise the services of volunteers to assist in their activities. These organisations should be mindful that people who participate in voluntary programs and who perform work in any capacity may be captured by the definition of ‘worker’ for the purposes of the stop-bullying jurisdiction of the Commission. These people will be eligible to make an anti-bullying application against an organisation regarding the conduct of an individual or group of individuals.

It is also important that anyone who works for an organisation in any capacity (including a volunteer capacity) receives training as to what is expected of them regarding appropriate behaviour and what they can do if they observe or feel that they have been the subject of bullying or other inappropriate behaviour.

If you would like more information or advice please contact a member of our Employment, Safety & People team.

[1] Bibawi v Stepping Stone Clubhouse Inc t/a Stepping Stone & Others [2019] FWCFB 1314 at [18].

[2] Ibid at [20].

AUTHORS
Tamsin Webster| Senior Associate
+61 3 9258 3738
E tamsin.webster@maddocks.com.au
Despina Psaras | Lawyer
+61 3 9258 3764
despina.psaras@maddocks.com.au