The attached document replaces the document previously issued with the above code on 2 April 2014.

In the preamble, the reference to the Workplace Health and Safety Act 2011 has been replaced with Work Health and Safety Act 2011.

In line 3 of paragraph [10], the word �definition� has been replaced by the word �disputation�.

[2014] FWC 2076

Fair Work Act 2009_

s.789FC - Application for an order to stop bullying

Application for an FWC order to stop bullying - whether person covered by legislation - definition of worker - definition of volunteer - definition of outworker - person in receipt of carer payments under social security legislation not a person performing work for the Department of Human Services - Fair Work Act 2009 ss.789FC, 789FD - Work Health and Safety Act 2011 ss. 4,7, 11,12 - Social Security Act 1991 s.198.

[1] This decision relates to an application by Arnold Balthazaar for an order directed to the Commonwealth Department of Human Services (the Department) that alleged bullying engaged in by a number of staff members at the CentreLink office at Gosford, NSW cease.

[2] In making the application Mr Balthazaar acknowledged that a preliminary issue arises as to whether the relationship between him and the Department is covered by the recently enacted anti-bullying provisions of the Fair Work Act 2009 (the FW Act).

[3] In its response to the application dated 24 February 2014 the Department raised a jurisdictional objection that Mr Balthazaar does not meet the definition of �worker� in s.789FC of the FW Act and submitted that the application is therefore invalid.

[4] With the consent of the parties I made directions for the filing of written submissions on this threshold issue and decided to determine whether the circumstances fall within the Act before proceeding to any consideration of the detail of the application.

[5] Mr Balthazaar addressed his status in his application dated 12 February. He filed a further written submission in accordance with my directions on 17 March 2014.

[6] The Department initially detailed its reasons for the jurisdictional objection in its response to the application filed on 24 February 2014 and made further written submissions in response on 24 March 2014.

[7] The Department administers payments and associated administrative arrangements under the Social Security Act 1991 (the SS Act) and related legislation. It conducts its operations through regional offices under the name of CentreLink.

[8] Mr Balthazaar receives a social security payment known as a carer payment in accordance with Part 2.5 of the SS Act to assist him to care for his daughter who suffers from a psychotic mental illness. A carer payment is said by the Department to be an income support payment made fortnightly for people who are unable to support themselves through substantial employment due the demands of their caring role. Mr Balthazaar contends, by reference to government publications, that the intention of the social welfare provisions is to remunerate carers for the service they provide which otherwise would be a burden on the State.

[9] The parties confirm that section 198 of the SS Act is the relevant provision governing the carer payment. It states:

�Qualification--disabled adult or disabled adult and dependent child

(1) A person is qualified for a carer payment if the requirements of this section are met.

Note: .Sections 198AA, 198AB and 198AC allow the person to qualify in certain short-term circumstances where the requirements would not be met. Constant care for disabled adult or disabled adult and a dependent child

(2) The person must personally provide constant care for:

(i) if the person is the only person providing the constant care--a disabled adult (the care receiver ) who has been assessed and rated under the Adult Disability Assessment Tool and given a score under that assessment tool of at least 25, being a score calculated on the basis of a total professional questionnaire score of at least 10; or

(ii) if not--a disabled adult (the care receiver ) who has been assessed and rated under the Adult Disability Assessment Tool and given a score under that assessment tool of at least 80, being a score calculated on the basis of a total professional questionnaire score of at least 32; or

(d) a disabled adult and a dependent child of the adult (the care receivers), where:

(i) the disabled adult has been assessed and rated under the Adult Disability Assessment Tool and given a score under that assessment tool of at least 20, being a score calculated on the basis of a total professional questionnaire score of at least 8; and

(iii) if the child is aged 6 or more--carer allowance is payable for the child; and

(iv) section 197D does not apply in respect of the care receivers.

Note: In a paragraph (d) case, subsection (9) deems certain supervision to constitute care.

(3) The care must be provided in a private residence that is the home of the care receiver or care receivers.

(4) The person must be an Australian resident, unless:

(a) the person is in a country in which carer payment may be granted to the person under a scheduled international social security agreement; and

(b) the scheduled international social security agreement entered into force on or before 24 December 1992.

(b) subject to subsection (6), be Australian residents; and

Note: For Australian resident see section 7.

(c) subject to subsection (7), pass the income test under section 198A; and

(i) pass the assets test under section 198D; or

(ii) be the subject of a decision in force under subsection 198N(2), (3) or (4) that subparagraph (i) does not disqualify the person providing the constant care from carer payment.

Alternative to Australian residence test for higher ADAT score adults

(a) the care receiver is the higher ADAT score adult mentioned in paragraph (2)(a); and

(b) the adult is receiving a social security pension; and

(c) carer payment may be granted to another person for the adult under a scheduled international social security agreement.

Alternative to income/assets test for higher ADAT score adults

(7) Paragraphs (5)(c) and (d) do not apply if the care receiver is the higher ADAT score adult mentioned in paragraph (2)(a) and the adult:

(a) is receiving a social security pension or benefit, a service pension or income support supplement; or

(b) would be receiving a social security or service pension or income support supplement if he or she had been an Australian resident for a long enough period.

Deemed personal care of disabled adult and dependent child

(9) For the purposes of paragraph (2)(d) and other references in this Part that relate to that paragraph, if a disabled adult is providing care of a dependent child of the adult at a particular time and another person is supervising the provision of that care at that time, the other person is taken personally to provide care of the adult and child at that time. �

[10] There has been some disputation between Mr Balthazaar and the officers employed at the Gosford CentreLink office concerning his ongoing entitlement to payments under this legislation, although the disputation is not confined to section 198. There were proceedings before the Social Security Tribunal in 2013 regarding certain payments made to him.

[11] Mr Balthazaar seeks to invoke the jurisdiction of the Fair Work Commission (the Commission) under s 789FC of the FW Act which relevantly states:

�789FC Application for an FWC order to stop bullying

(1) A worker who reasonably believes that he or she has been bullied at work may apply to the FWC for an order under section 789FF.

(2) For the purposes of this Part, worker has the same meaning as in the Work Health and Safety Act 2011, but does not include a member of the Defence Force.

Note: Broadly, for the purposes of the Work Health and Safety Act 2011, a worker is an individual who performs work in any capacity, including as an employee, a contractor, a subcontractor, an outworker, an apprentice, a trainee, a student gaining work experience or a volunteer.�

[12] Section 7(1) of the Work Health and Safety Act 2011 (the WH and S Act) provides:

(1) A person is a worker if the person carries out work in any capacity for a person conducting a business or undertaking, including work as:

(c) an employee of a contractor or subcontractor; or

(d) an employee of a labour hire company who has been assigned to work in the person�s business or undertaking; or

[13] Section 4 of the WH and S Act includes the following definition of �volunteer�:

�volunteer� means a person who is acting on a voluntary basis (irrespective of whether the person receives out-of-pocket expenses).

[14] The term �outworker� is not defined in the WH and S Act but is defined in s.12 of the FW Act as:

(a) an employee who, for the purpose of the business of his or her employer, performs work at residential premises or at other premises that would not conventionally be regarded as being business premises; or

(b) an individual who, for the purpose of a contract for the provision of services, performs work:

(i) in the textile, clothing or footwear industry; and

(ii) at residential premises or at other premises that would not conventionally be regarded as being business premises.�

[15] Mr Balthazaar submits that by virtue of his qualification for, and receipt of, carer payments, he is an employee and/or and outworker and/or a volunteer and that he carries out work for the Department. The Department submits that Mr Balthazaar is not engaged in any of these capacities and indeed does not carry out work in any capacity for the Department.

[16] It is not contested that the Department conducts a business or undertaking. As the definition of a constitutionally covered business, an element of the definition of being bullied at work in s.789FD of the FW Act, includes the Commonwealth and a Commonwealth Authority, this concession is plainly correct.

[17] It is clear that the scope of the anti-bullying jurisdiction is very broad and extends well beyond the classes of employees covered by other provisions of the FW Act. Whereas most other provisions of the FW Act regulate the relationships of employers and employees, with certain limitations, the anti-bullying jurisdiction is clearly intended to cover persons who perform work for a person conducting a business or undertaking even though there may not be an employment relationship at common law. Indeed the remedy created by the provisions is available with respect to bullying at work that may be engaged in by persons beyond the employer and its employees and independently of any formal relationship between the individuals concerned.

[18] However before the remedy becomes available, the person making an application must fall within the definition of �worker� because it is only workers, as defined, who can make an application under s.789FC. This requirement also serves to define the context of the application. The remedy with respect to alleged bullying at work must arise from the context of the application and the relevant status of the applicant. It could not have been the intention of the legislature that a person who is a worker by virtue of one employment relationship, such as a part-time job, can make an application with respect to alleged bullying behaviour in an entirely separate context from the work performed in that job. This is made clear from the terms of s.789D of the FW Act to provide a remedy to a worker who is �bullied at work�.

[19] The definition of �worker� in s.7(1) of the WH and S Act contains two primary elements. First, the person must carry out work. Secondly, the work must be carried out for a person conducting a business or undertaking. There follows words of inclusion to emphasise that the work carried out for a person conducting a business or undertaking can be in any capacity whatsoever. The capacities extend beyond that of an employee. It can extend to persons performing work as an independent contractor under a contract for services. Indeed it is not necessary that there be any contract or any payment for the work. Volunteer work is included within the definition (subject to the exclusion of volunteers working together in a volunteer association: WH and S Act s.5).

[20] The nature of the definition of �worker� requires attention to the primary elements, rather than the inclusive categories that follow the core requirements of the definition. Given the nature of the arguments put by the parties in this case I propose to adopt such an approach.

[21] A carer in receipt of a payment under s.198 of the SS Act provides constant care for the care receiver. In my view such care constitutes �work� in the broad sense. Indeed there appears to be no limitation on the concept of work. Any unpaid domestic work would appear to fall within the definition. I am satisfied that in his capacity as a carer Mr Balthazaar carries out work.

[22] The more difficult question is whether he carries out work for the Department, or any other person who conducts a business or undertaking. As I have noted, it is not disputed that the Department conducts a business or undertaking. But it does not follow that in receiving a carer payment under s.198 of the SS Act administered through the Department�s Centrelink offices, a carer is carrying out work for the Department. The SS Act does not have objects that can be considered for the purposes of ascertaining the context and intent of the legislative provisions. The task of interpretation must therefore focus on the provisions of the SS Act that govern the payment and the intent of the definition in the WH and S Act, applied by the FW Act, for the purposes of the anti-bullying provisions.

[23] Mr Balthazaar contends that the overall objective of caring is directed through obligations imposed by the Department under the SS Act and that he must discharge the duties of caring in order to qualify for payments. Indeed he contends that he is an employee of the Department and that the necessary elements of an employment relationship are present.

[24] The Department contends that Mr Balthazaar does not carry out any work for the Department. Rather, he is eligible, pursuant to statutory criteria, to receive an income support payment under a statutory social security scheme. It submits that properly understood, this arrangement does not constitute an employment relationship, an independent contractor arrangement, a volunteer arrangement or amount to carrying out work for the Department. Its reasons for this submission include the absence of the notion of performing work for the other person or entity. It submits that the connection between the work and the beneficiary of the work is a necessary ingredient of the definition of a worker and any contractual arrangement under which work is performed.

[25] In my view Mr Balthazaar�s work as a carer is carried out as part of his parental responsibilities for the benefit of his daughter. The payments arising from the SS Act are properly viewed as social security payments pursuant to legislation aimed at assisting people in his situation and the receivers of their care. I do not consider that there is a sound basis to classify the relationship between him and the Department as one of employer and employee, principal and independent contractor, a volunteer in the undertaking of the Department or the performance of work for the Department in any other capacity. The arrangement is not akin to the provision of services to the Department. The contention to the contrary by Mr Balthazaar involves an artificial characterisation of the arrangement and in my view, cannot be sustained.

[26] My conclusion is reinforced by a consideration of the context of the anti-bullying provisions of the FW Act. In my view, while obviously intended to cover a broad range of work arrangements, the provisions are not unlimited. In my view they are clearly not intended to cover relationships such as students performing work for teachers, domestic work by family members or relationships outside the context of paid or unpaid work in the commonly understood sense. The payment of social security benefits based on satisfaction of statutory criteria does not in my view involve work for the Department in the undertaking of administering its statutory and administrative responsibilities. I therefore do not regard the carer payment as giving rise to the requisite connection between the work he undertakes as a carer and the undertaking of the Department. I do not believe that Mr Balthazaar performs his carer work for the Department.

[27] The question of jurisdiction raised in this matter is whether Mr Balthazaar is a worker for the purposes of the statutory definition under the anti-bullying provisions of the FW Act. This question arises with respect to his status as a carer under the SS Act and payments made to him under the SS Act administered by the Department.

[28] I am not satisfied that Mr Balthazaar is a worker for the purposes of s.789FC of the FW Act because the receipt of carer payments pursuant to qualifying requirements does not amount to performing work for the Department. It follows that his application is not a valid application that can found jurisdiction in this Commission under the anti-bullying provision of the FW Act. Mr Balthazaar�s application must therefore be dismissed.

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