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

Application for an FWC order to stop bullying - objections that applicant not a "worker" or "at work" at the time of the alleged bullying - objections upheld

• [1] Grant Warner is a longstanding member of the ANU Sailing Club, which is a sporting club affiliated with the Australian National University Sport and Recreation Association Incorporated ("ANU Sport"). As a condition of his membership of the Sailing Club, Mr Warner is also a member of ANU Sport.
• [2] Over the years, Mr Warner has undertaken a range of voluntary activities for the Sailing Club. These include building and garden maintenance, boat repairs, training and mentoring other Club members and assisting with activities such as barbecues. He has also served on the Sailing Club Committee.
• [3] From late 2022, Mr Warner came into conflict with other members of the Sailing Club Committee. He escalated his concerns to the Board of ANU Sport. It is not presently necessary to explore that history. It suffices to observe that the conflict between Mr Warner and the Sailing Club, and by extension ANU Sport, could not be resolved.
• [4] The dispute between Mr Warner and the Sailing Club culminated in the Sailing Club deciding on 19 November 2024 to suspend Mr Warner's membership until 1 January 2026. Mr Warner has appealed that decision through the Sailing Club's internal processes. However, he remains suspended pending the outcome of his appeal.

• [5] Mr Warner has applied to the Commission under s 789FC(1) of the Fair Work Act 2009 for an order to stop bullying. In his application, he identified ANU Sport as the relevant "employer/principal". He claimed to have been bullied at work by 11 named individuals.
• [6] Section 789FC(1) is available to "[a] worker who reasonably believes that he or she has been bullied at work". ANU Sport denies that Mr Warner was the subject of bullying. But more particularly for present purposes, it contends that Mr Warner was not a "worker" for the purposes of section 789FC(1), and was not "at work" at the time of the alleged bullying. On that basis, it submits that the Commission does not have jurisdiction to deal with the application ("Objection").

• [7] This decision relates to the Objection. In dealing with the Objection, it is not necessary to describe or explore the bullying to which Mr Warner alleges he was subjected or to traverse ANU Sport's response to those allegations.

• [8] I have decided to uphold the Objection. These are my reasons.

• [9] Under s 789FC(2), "worker" is defined as having the same meaning as in the Work Health and Safety Act 2011 (Cth). Section 7(1) of that Act is in the following terms:

(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:

(a) an employee; or

(b) a contractor or subcontractor; or

(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

(e) an outworker; or

(f) an apprentice or trainee; or

(g) a student gaining work experience; or

(h) a volunteer; or

(i) a person of a prescribed class.

• [10] Section 5 of the Work Health and Safety Act relevantly provides:

"5 Meaning of person conducting a business or undertaking

(1) For the purposes of this Act, a person conducts a business or undertaking:

(a) whether the person conducts the business or undertaking alone or with others; and

(b) whether or not the business or undertaking is conducted for profit or gain.

(7) A volunteer association does not conduct a business or undertaking for the purposes of this Act.

(8) In this section, volunteer association means a group of volunteers working together for 1 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."

• [11] The term "volunteer" is defined in s 4 of the Work Health and Safety Act as meaning "a person who is acting on a voluntary basis (irrespective of whether the person receives out‑of‑pocket expenses)".
• [12] The definition of "worker" in section 7 of the Work Health and Safety 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 ("PCBU"). The words of inclusion ("including work as") emphasise that the work carried out for a PCBU "can be in any capacity whatsoever" and extend beyond those of an employee. 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).[1]

• [13] It is common ground between the parties that of the categories listed in section 7 of the Work Health and Safety Act, the only one that would apply to Mr Warner is "volunteer". It is also agreed that ANU Sport is a PCBU.

• [14] The arguments that ANU Sport advanced in support of the Objection may be summarised in this way:

(1) Mr Warner was not a worker. This is for the following reasons:

(a) The Sailing Club is a volunteer association within the meaning of section 5(8) of the Work Health and Safety Act. Given section 5(7) of that Act, the Sailing Club does not conduct a business or undertaking. It follows that any work performed by Mr Warner in connection with the Sailing Club cannot be work for a PCBU as required by section 7 of that Act. Therefore, Mr Warner cannot have been a "worker" as defined.

• (b) Further, apart from work performed as a member of the Sailing Club's Committee, the other activities in which Mr Warner engaged was "informal volunteering" conducted on a "charitable basis".[2] It is not "work" for or on behalf of the Sailing Club.

(c) The only relevant PCBU in the proceedings is ANU Sport. Mr Warner has never performed work for ANU Sport. The fact that ANU Sport exercises governance oversight of the Sailing Club, as an affiliated club, does not mean that any volunteer work performed by Mr Warner for the Sailing Club is work for ANU Sport as a PCBU.

(d) The only work that ANU Sport may require from affiliated clubs relates to the governance and financial requirements of affiliation, as set out in the ANU Sport Constitution. That work is generally only undertaken by the members of a club's Executive Committee. The Sailing Club's Executive Committee comprises the Commodore (equivalent to President), the Captain of Boats (equivalent to Vice-President), the Treasurer and the Secretary. During the period in which the alleged bullying occurred, despite being the Sailing Club Secretary for 20 days in 2023, Mr Warner was not required to perform any club governance work for ANU Sport.

• (e) The only activity that Mr Warner undertook that might be said to have been for the benefit of ANU Sport was mowing the lawns around the Sailing Club shed. This was a "charitable act" and not volunteer work for the purposes of the Work Health and Safety Act.[3] Apart from mowing the lawns, any informal volunteering activities in which Mr Warner engaged were for the benefit of the Sailing Club, not ANU Sport.

(2) Mr Warner was not "bullied at work". That is:

(a) For a worker to be eligible to apply for a stop bullying order under section 789FC, they must reasonably believe that they have been "bullied at work".

• (b) Section 789FD sets out the criteria necessary for a worked to be "bullied at work". One of these is that the alleged bullying behaviour occur "while the worker is at work in a constitutionally-covered business".[4]

(c) The term "constitutionally-covered business" is defined in section 789FD(3). That definition requires the business to be a PCBU. ANU Sport meets the requirements of the definition; the Sailing Club does not.

(d) To the extent that Mr Warner can be regarded as having been "at work" as a volunteer with the Sailing Club, he was not at work in a constitutionally-covered business. It follows that he cannot have been bullied at work, within the meaning of section 789FD.

(e) For the reasons outlined above, Mr Warner was never "at work" for ANU Sport.

(f) It follows that at the time of the alleged bullying, Mr Warner was not "at work in a constitutionally-covered business". He cannot have been bullied at work. He is therefore not entitled to apply for a stop bullying order.

• [15] Mr Warner's submissions in opposition to the Objection may be summarised in this way:

• (1) No distinction is to be drawn between ANU Sport and its affiliated clubs. They comprise a "consolidated entity with a common goal".[5] This is evidenced by:

(a) the obligations imposed on affiliated clubs by the ANU Sport Constitution; and

(b) the terms of the "Affiliation Agreement" that ANU Sport requires its affiliated clubs to enter into. Mr Warner relied in particular on the control that the Affiliation Agreement gives to ANU Sport over a club's activities. He contended that having regard to the substance of the relationship and in light of all of the evidence, ANU Sport exercises absolute control over the Sailing Club.

• (2) WorkSafe ACT has determined ANU Sport and the Sailing Club to be a single PCBU. This is "the primary factor to be taken into consideration".[6]

(3) Further, WorkSafe ACT considered all ANU Sport members to be volunteers and therefore within the definition of "worker".

• (4) It is incorrect for ANU Sport to contend that only the Executive Committee of the Sailing Club works for ANU Sport. All Committee members must be covered by the definition of a worker. Mr Warner submitted that "[t]hese committee members undertake work such [as] maintaining and driving the safety boat, organising kayak sessions, social events, submitting event risk management and approval...forms, regattas, training, maintaining a clean building. The full committee works/participates as a team to organise an event, as do all ANU Sport members."[7]

• (5) The reference in section 7 of the Work Health and Safety Act to a person working "in any capacity" extends to being a participant. The purpose of ANU Sport is to participate in sport for the benefit of the ANU campus experience, whether that be competitive, social or recreational in nature, as an individual or as a team. Any member who participates in an activity is working towards that purpose and is at work, in the workplace. Mr Warner submitted that "[b]eing at the club is at the workplace and therefore includes being a worker."[8]

• (6) A charity is a good comparator of the structure of ANU Sport and its affiliated clubs: "The national and local committees organise the non-committee volunteers. The volunteers undertake a wide range of work from front facing activities, coordination, admin and charity work. It is about participation. All regular volunteers, in the case of ANU Sport, all members [who] have committed to participating, and have expressed that commitment, should be considered volunteers for the purpose of the Fair Work Act."[9]

The relationship between ANU Sport and the Sailing Club

• [16] The key question to be answered is whether, as Mr Warner contends, ANU Sport and the Sailing Club are to be regarded as a "consolidated entity". That is, whether they are a single PCBU. This will largely determine whether at the time of the alleged bullying Mr Warner was working for a PCBU, as required by section 7 of the Work Health and Safety Act.
• [17] At the outset, I observe that ANU Sport and the Sailing Club each have their own Australian Business Numbers ("ABNs"). This suggests that they are separate entities.

"An examination of the Australian Business Number register (abr.business.gov.au), using ANU Sports Union as the search term will result in a list of all affiliated clubs at the commencement of GST. This indicates ANU Sport applied on behalf of all clubs and thus took the lead for the clubs."

• [19] I accept ANU Sport's submission that there is no evidence to support that last contention.

• [20] Sarah Reid is the Commodore of the Sailing Club. She described the Sailing Club as a "volunteer association established to promote the sport of sailing".[11] She stated that the Sailing Club has no employees.

• [21] The Sailing Club has its own Constitution.[12] I will not traverse all of the terms of the Constitution, but I will note some in particular.

• [22] The Objects of the Sailing Club are described in the Constitution as follows:

3.1 Promote, encourage and aid in administration of the sport of sailing, and other water sports[;]

3.2 Act, always, on behalf of and in the interest of the Members and the Sport of Sailing;

3.3 Affiliate and otherwise liaise with ANU Sport of which the Club is a member and adopt their rules and policy frameworks to further these Objects;

3.4 Undertake and or do all such things or activities which are necessary, incidental or conducive to the advancement of these Objectives."

• [23] The Sailing Club's Constitution contains provisions relating to membership of the Club. These include eligibility for membership, the process by which to apply for membership and membership fees.

• [24] The Sailing Club's Constitution establishes a Committee, whose role is described in these terms:

13.1 The Committee, subject to the [Associations Incorporation Act 1991 (ACT)], this Constitution, or any regulations:

(b) May make, approve, adopt, interpret and amend, from time to time, such regulations consistent with this Constitution as for the proper advancement, management and administration of the Club;

(c) May exercise all functions that may be exercised by the Club other than those functions that are required by this Constitution to be exercised by the Club in a general meeting;

(d) Has the power to delegate to Committee and individuals subject to clause 19;

(e) Has power to perform all acts and do all things that appear to the Committee to be necessary or desirable for the proper management of the affairs of the Club; and

(f) Follow all affiliation requirements, policies and procedures and reasonable direction from ANU Sport and ANU."

• [25] The Constitution mandates the composition of the Committee, sets out the conditions of eligibility for election to the Committee, prescribes the process for Committee elections and establishes rules regarding meetings of the Committee and how decisions of the Committee are to be made.

• [26] The Sailing Club's Constitution also has provisions relating to the holding of an Annual General Meeting ("AGM") and General Meetings, the means by which the Sailing Club may derive and apply income, and the maintenance of records and accounts, including financial statements.

• [27] Finally, I observe that the Constitution provides as follows:

34.1 The Club is Affiliated with ANU Sport and is recognised as the entity responsible for the delivery of the Sport[13] in accordance with the Objectives but subject always to compliance with this Constitution and ANU Sport's constitution and policies." (My emphasis)

• [28] To my mind, the Sailing Club's Constitution is reflective of the Sailing Club being an entity in its own right. The question which arises is whether the Sailing Club's affiliation with ANU Sport calls for a different conclusion.

• [29] Kathleen McCaskie is the Chief Executive Officer of ANU Sport. She gave the following evidence:[14]

8. ANU Sport is a not-for-profit incorporated association in the Australian Capital Territory, governed by a volunteer board with the objects of furthering the interests of sport, physical recreation and wellbeing among ANU students and other members, its affiliated clubs and the wider community, including providing sporting and recreation facilities and to organise and facilitated sporting and recreational activities. ...

10. Under clause 16 of the ANU Sport Constitution, ANU Sport permits entities which are the representative of, and controlling authority for, a sport or recreational activity within the University may apply to the Board to become an affiliated Club.

11. Once accepted, an affiliated club is required to reaffiliate annually to ANU Sport by agreeing to the Affiliation Agreement between the club and ANU Sport. ...

12. ANU Sport provides the governance framework for its affiliated clubs, including access to online systems to assist clubs to manage memberships and the collection of member fees. Given the transient nature of the members of university sporting clubs, ANU Sport provides the facilities and governance framework for its affiliated clubs in order to maintain club stability and ensure the ongoing success of ANU sporting clubs, despite a constant turnover in membership and committee membership which is to be expected in a student-based community. ANU Sport makes it easy for students to be involved in its affiliated clubs and take up leadership roles in those clubs.

13. ANU sporting and recreation clubs make a significant contribution to the ANU community and student wellbeing, and while it is ANU Sport's role to provide support to its affiliated clubs, the work of an affiliated club is the responsibility of the club committee, not ANU Sport."

• [30] Clause 16 of the ANU Sport Constitution is relevantly in these terms:[15]

16.1 An entity which is a representative of, and controlling authority for, a sport or recreational activity within the University may apply to the Board to become an affiliated Club.

16.2 All clubs must supply the following documentation to the Board:

16.3 At its discretion, the Board may recognise that entity as an affiliated Club.

a) provide the Association with copies of its annual financial statements, annual report and associated documents as presented to its members within 30 days of the Club's annual general meeting;

b) adopt in principle the Objects, and adopt rules which are, to the extent permitted or required by the Act, generally in conformity with this Constitution;

c) act in good faith and loyalty to ensure the maintenance and enhancement of the Association, its standards, quality and reputation for the collective and mutual benefits of the Members[;]

d) at all times operate with, and promote, mutual trust and confidence between the Association and the Members in pursuit of the Objects;

e) provide a Club update for the Annual Report by 31 December each year; and

f) pay the annual fees and levies, if applicable, to the Association."

• [31] The reference in this passage to "Objects" is to the objects set out in clause 3 of the Constitution. That clause provides:

a) further the interests of sport, physical recreation and wellbeing among student and other Members, Clubs and the wider community;

b) provide sporting and recreation facilities for student and other Members, Clubs and the wider community; and

c) organise and facilitate sporting and recreational activities for student and other Members, Clubs and the wider community."

• [32] ANU Sport's evidence included the 2023 and 2024 versions of the "ANU Sport Club Affiliation Agreement".[16] They are each in two parts. The first part lists what are said to be the "benefits of being an ANU Sport Affiliated Club". The second part sets out the "obligations of an ANU Sport Affiliated Club".

• [33] The benefits of being an affiliated club are described in the Affiliation Agreements as including:

(1) administrative support in the form of a dedicated Club Development staff member, online resources, templates and documentation;

(2) being entitled to utilise the ANU Sport brand and intellectual property, with "exclusive access" to promote and market themselves through ANU Sport to ANU students, staff, alumni, and the broader community as an ANU Sport-endorsed sporting, recreational or instructional club;

(3) being entitled to engage with ANU Sport student (and community) focused programs, including but not limited to interhall sport, intervarsity and representative sport, social/lunchtime sport, and introduction courses;

(4) being eligible to apply for ANU Sport Blues Awards;

(5) having access to the ANU Sport online customer management system;

(6) having access to campus facilities managed by ANU Sport;

(7) being able to apply to ANU Sport for grants and financial assistance;

(8) coverage under the ANU Insurance Policy, provided that the club's activities are approved by ANU Sport;

(9) leadership opportunities for club members; and

• [34] The obligations of an affiliated club are described in the Affiliation Agreements as including:

(1) signing and complying with the Affiliation Agreement;

(2) complying with all governance and financial obligations as identified by ANU Sport. Governance requirements include holding an annual general meeting, electing an Executive Committee; operating under a constitution approved by ANU Sport and Club members, and having a current Member Protection Information Officer. Financial obligations include maintaining an official bank account with dual authorisation required for all financial transactions, maintaining adequate resources to fund Club activities, and preventing financial and asset mismanagement;

(3) complying with all directives issued by ANU Sport including in respect of compliance with ANU Sport policies and procedures, ANU Sport's affiliation requirements, membership management, community engagement, facility access and meeting with ANU Sport;

(4) ensuring that club members are current members of ANU Sport and that they comply with the terms of their membership with ANU Sport;

(5) providing representation at events as required by ANU Sport;

(6) submitting documentation to ANU Sport including club reports, reports from the club's AGM, financial statements, incident and injury reports and Club Activity Approval forms;

(7) ensuring that the club and its members act with integrity, represent ANU and ANU Sport in a positive light and comply with ANU Sport's Code of Conduct and the Member Protection Policy; and

(8) respecting and complying with ANU's and ANU Sport's intellectual property rights and Brand Guidelines.

• [35] The circumstances of this case demonstrate the active role that ANU Sport can play in enforcing the terms of the Affiliation Agreement. In June 2023, it placed the Sailing Club "under review" for breaches of the Affiliation Agreement. After further non-compliance, ANU Sport directed the Sailing Club to show cause why it should not be disaffiliated. In March 2024, ANU Sport placed the Sailing Club on "probation" due to "significant concerns...regarding the Sailing Club's governance, operations and culture".[17] That probation was subject to a number of conditions, including that there be a change to the Sailing Club Executive Committee, and that ANU Sport endorse the appointment of anyone who was nominated to join the Committee.

• [36] That last condition had an impact on Mr Warner. At the Sailing Club's AGM on 23 March 2024, Mr Warner was elected to the Committee as Vice-Captain of Boats. ANU Sport refused to endorse Mr Warner's position on the Committee.[18]

• [37] Mr Warner also drew my attention to the Affiliation Agreement in place in 2020. It provided that all assets managed and purchased by affiliated clubs would remain the property of ANU Sport, and that on dissolution or disaffiliation of an affiliated club, its assets were to be given or transferred to ANU Sport.

• [38] It is apparent that ANU Sport has and exercises a significant degree of control over its affiliated clubs, including the Sailing Club. It is that degree of control on which Mr Warner relies to argue that the two entities are to be regarded as a "single PCBU".

• [39] However, that control is to be seen in the context of the consequences of affiliation. An affiliated club is able to operate under the auspices of ANU Sport, with access to its and the ANU's intellectual property and branding, and to other ANU Sport assets. The club is, in effect, bestowed with the imprimatur of ANU Sport in the conduct of its operations. It is to be expected that ANU Sport would wish to have governance oversight over the club's activities, and to require the club to comply with certain standards in the conduct of its activities.

• [40] Similarly, the requirement for an affiliated club to provide financial reports to ANU Sport is hardly surprising. ANU Sport has an interest in ensuring that its affiliated clubs are financially sound. Beyond the requirement to provide financial statements, there is no evidence that ANU Sport has an active role in how an affiliated club spends its money.

• [41] I accept ANU Sport's submission that the fact that ANU Sport is identified as the entity in which an affiliated club's assets will vest if the club is dissolved does not mean that ANU Sport has any control over the club's finances. Ms McCaskie stated that it is a term of the constitution of most affiliated clubs that if the club is dissolved or wound up, its assets will vest in ANU Sport. (There is a term to that effect in the Sailing Club's constitution.[19]) She said that in that event, ANU Sport will hold the club's assets until the club can continue to operate again.

• [42] Affiliation also entitles a club to coverage under the ANU's public liability insurance policy. This is as a result of ANU Sport being a named entity under the policy. As ANU Sport submitted, it is to be expected that ANU Sport would wish to know of and approve a club's activities, so as to manage its potential insurance liability. This is not the same thing as controlling the way in which those activities are conducted. As Ms McCaskie stated, "ANU Sport do not have the resources or knowledge to stipulate exactly what those activities are".[20]

• [43] To my mind, Mr Warner incorrectly conflates affiliation with amalgamation. I accept ANU Sport's submission that affiliation "creates a formal connection between separate entities".[21] It does not result in the consolidation of the entities.

• [44] I also note ANU Sport's submissions that in order for it to be a "consolidated entity" with its affiliated clubs, there would need to be a process of amalgamation as provided for under Division 3.3 of the Associations Incorporations Act 1991 (ACT). ANU Sport submitted that this would involve applying to the ACT Registrar-General to set up a new amalgamated association, which would effectively result in the dissolution of all the clubs. Clearly that has not occurred.

• [45] On 3 October 2024, WorkSafe ACT issue ANU Sport with an improvement notice under section 191 of the Work Health and Safety Act 2011 (ACT).[22] The notice referred to the inspector's belief that ANU Sport was contravening section 19(1) of that Act in that "[w]orkers and others within the ANU Sailing Club are currently exposed to a risk of psychological and/or physical injury and/or illness emanating from multiple uncontrolled hazards". The inspector stated that "ANU Sport was unable to demonstrate that all reasonably foreseeable psychosocial hazards in the Sailing Club have been adequately identified and the associated risks assessed".

• [46] Mr Warner placed significant reliance on the improvement notice. He contended that it evidenced a determination by WorkSafe ACT that ANU Sport and all affiliated clubs are a single PCBU and that it considered all ANU Sport members to fall within the definition of "worker". He contended that it "would be inappropriate for the Commissioner or the Full Bench to contradict WorkSafe ACT, being the experts [in] determining a PCBU".[23]

• [47] I do not accept that the improvement notice has the effect described by Mr Warner. It is not in dispute that ANU Sport is a PCBU. It can be inferred from the improvement notice that WorkSafe ACT regarded the activities of the Sailing Club as forming part of the business or undertaking conducted by ANU Sport. But that is not to say that WorkSafe ACT determined that the two entities were taken to be consolidated into a single entity. That is, the improvement notice does not change the status of the Sailing Club. The issuing of the improvement notice to ANU Sport is not necessarily inconsistent with the Sailing Club having a separate existence as a volunteer association.

• [48] Further, the improvement notice does not support the contention that WorkSafe ACT considered all members of the Sailing Club, and by extension ANU Sport, to be "workers". It expressly refers to "workers and others" being exposed to risk. As ANU Sport submitted, this reflects the terms of the work health and safety legislation, which extend a PCBU's primary duty of care beyond workers but to "other persons" who may be put at risk from work carried out as part of the business or undertaking.[24]

• [49] For the reasons set out above, I accept ANU Sport's contention that ANU Sport and the Sailing Club are separate entities. They are not to be regarded as a consolidated entity, as Mr Warner contended.

• [50] It follows that I do not accept Mr Warner's arguments that any volunteer work that he performed for the Sailing Club is to be regarded as having been performed for ANU Sport.

• [51] On the evidence, I am satisfied that the Sailing Club is a volunteer association within the meaning of section 5(8) of the Work Health and Safety Act. That is, it is a group of volunteers working together for a community purpose where none of the volunteers, whether alone or jointly with any other volunteers, employs any person to carry out work for the volunteer association.

• [52] That conclusion has two consequences. First, given the terms of section 5(7) of the Work Health and Safety Act, the Sailing Club cannot be a PCBU. It is therefore not necessary to traverse in detail ANU Sport's submissions as to whether the volunteer activities undertaken by Mr Warner for the Sailing Club comprised "work". It suffices to observe that in light of the observations of the Full Bench in Bibawi v Stepping Stone Clubhouse Inc t/a Stepping Stone & Others[25] I do not accept that the legislation allows for a distinction to be drawn between "charitable" and other work, in the manner for which ANU Sport contends.

• [53] There was a significant amount of evidence as to the volunteer activities in which Mr Warner has engaged over the years. To paraphrase the Full Bench in Bibawi,[26] Mr Warner performed work that the Sailing Club needed to be done and was plainly of value to its operations.

• [54] In any event, even accepting that Mr Warner performed work for the Sailing Club, it was not work for a PCBU. It follows that the work would not qualify Mr Warner as a worker within the meaning of section 7 of the Work Health and Safety Act.

• [55] Second, as the Sailing Club is not a PCBU, it cannot be a "constitutionally-covered business" as defined in section 789FD(3) of the Fair Work Act. That definition is premised on the business being a PCBU.

• [56] It follows that in so far as Mr Warner's application relates to the actions of members of the Sailing Club, Mr Warner cannot have been "bullied at work" within the meaning of section 789FD(1). It is a requirement of that definition that the alleged bullying conduct occur "while the worker is at work in a constitutionally-covered business".

• [57] Consequently, the Commission could not be satisfied that Mr Warner "has been bullied at work" at the Sailing Club. That is a prerequisite to the Commission making an order under section 789FF(1).

• [58] Ms McCaskie gave evidence that as ANU Sport's assistance to affiliated clubs is focused on governance, it tends only to deal with the Executive Committee of an affiliated club. In the case of the Sailing Club, the Executive Committee comprises the Commodore, the Captain of Boats, the Treasurer and the Secretary. Ms Reid stated that apart from the Commodore and possibly the Treasurer, no other member of the Sailing Club Committee or a member of the Club is required to perform work for ANU Sport.

• [59] ANU Sport accepted that members of the Executive Committee might be said to be performing work for ANU Sport if they were performing work associated with the responsibilities set out in clause 16 of the ANU Sport Constitution. However, both Ms McCaskie and Mr Reid stated that although Mr Warner was the Secretary of the Sailing Club from 25 March 2023 to 14 April 2023, he did not perform any volunteer work for ANU Sport in that period.

• [60] ANU Sport contended that the various activities in which Mr Warner engaged were for the benefit of the Sailing Club, not ANU Sport. It submitted that Mr Warner had failed to demonstrate, or even suggest, otherwise.

• [61] There is force to those contention. Mr Warner's case was premised on there being no relevant difference between performing work for the Sailing Club and for ANU Sport. That is, as the entities were to be regarded as one, work for one was work for the other. Mr Warner did not identify which of the activities might be said to be for ANU Sport, as opposed to the Sailing Club, if the primary premise of his case was not accepted.

• [62] That said, ANU Sport recognised that in an email to the Commission, Mr Warner stated: "I mow the grass to save time, effort and cost for the ANU Sport maintenance officer." ANU Sport accepted that this might be an activity said to be for ANU Sport. However, it did not accept that this was relevantly "work", but was in the nature of a "charitable act".[27] I repeat my earlier observations as to whether the legislation allows for a distinction between charitable and other work. However, I am not satisfied that this was relevantly work for ANU Sport. There is nothing to suggest that ANU Sport requested or required him to perform the task. To the contrary, Ms McCaskie gave evidence that she had informed Mr Warner on several occasions that he was not to mow the grass.

• [63] I am mindful that the Sailing Club operates from premises leased from ANU Sport. There is significant evidence as to building and garden maintenance undertaken by Mr Warner over the years. In her evidence, Ms Reid sought to paint a picture of Mr Warner acting entirely of his own volition and without approval of the Sailing Club Committee, taking upon himself various tasks. Ms Reid's evidence contains a suggestion that Mr Warner's activities were carried out in an almost clandestine manner. However, the documentary evidence clearly shows that there was general awareness within the Sailing Club as to Mr Warner's activities, and that he did not undertake the tasks on his own. (In this context, Ms Reid's efforts to call into question the quality of the work Mr Warner performed, including by comparing it unfavourably with the outcome that might have been expected had a qualified tradesman have done the work, was unnecessary and unfortunate.)

• [64] However, while the maintenance work in which Mr Warner engaged may have be said to have been directed towards the upkeep of ANU Sport's property, there is no evidence that it was done with the knowledge or approval of ANU Sport. Ms McCaskie stated that while affiliated clubs are expected to keep leased premises neat and tidy, "building maintenance and garden maintenance is not work ANU Sport requires or authorises its affiliated clubs to do".[28]

• [65] For completeness, I do not accept Mr Warner's contention that simply being a participant in an activity as a member of ANU Sport is sufficient to qualify him as a worker for the purposes of section 7 of the Work Health and Safety Act. He contended that as a member, his participation in an activity involved working towards the purposes of ANU Sport. As this involved him being in ANU Sport's workplace, this qualified him as being a worker, at work.

• [66] These submissions rest on the words "in any capacity" in section 7. They fail to have regard to the words "carries out work" which precede them, or the requirement that the work be performed for a PCBU. Participation as a member in a club's activities, with nothing more, cannot be regarded as carrying out work for the club of which a person is a member.

• [67] For these reasons, I accept ANU Sport's submission that Mr Warner was not carrying out work for ANU Sport at the time of the alleged bullying. He was not a worker of ANU Sport at the time. It follows that he was not "at work" for ANU Sport at the relevant time.

• [68] I recognise the contribution that Mr Warner has sought to make to the Sailing Club over the years. It is apparent that he is committed to the Sailing Club and has invested a large amount of his time in attempting to improve the Club's assets and facilities, and to pass on his knowledge to other Club members. It is regrettable that the relationship between Mr Warner, the Sailing Club and ANU Sport has deteriorated to the point reflected in the evidence.

• [69] However, the question before me is whether Mr Warner is entitled to apply for a stop bullying order against ANU Sport and the named individual respondents under Chapter 6 Part 6-4B of the Fair Work Act. For the reasons set out above, I have found that he was not performing work for a PCBU at the time of the alleged bullying. By definition, he cannot have been a "worker" for the purposes of the legislation. It follows that Mr Warner has no standing to bring his application under section 789FC.

• [70] I have also found that Mr Warner was not "at work" at the time of the alleged bullying. It follows that the Commission could not be satisfied that Mr Warner "has been bullied at work" at the Sailing Club, which is a prerequisite to the Commission making an order under section 789FF(1).

• [71] On those bases I uphold the Objection. I dismiss the application in accordance with section 587(1)(a) and (c) of the Fair Work Act.

[1] Balthazaar v Department of Human Services (Commonwealth) [2014] FWC 2076 at [19], quoted with approval in Bibawi v Stepping Stone Clubhouse Inc t/a Stepping Stone & Others [2019] FWCFB 1314 at [18]

[2] Respondent's Submissions on Jurisdiction, 21 February 2025, par 20. The submission relied on Application by David Gibson [2020] FWC 3373 at [84]

[3] Respondent's Submissions on Jurisdiction, par 59

[4] Section 789FD(1)(a)

[5] Applicant's Response to Question of Jurisdiction, par 27

[6] Applicant's Response to Question of Jurisdiction, par 36

[7] Applicant's Response to Question of Jurisdiction, par 46

[8] Applicant's Response to Question of Jurisdiction, par 15

[9] Applicant's Response to Question of Jurisdiction, par 127

[10] Applicant's Response to Question of Jurisdiction, par 20

[11] Statement of Sarah Reid, 21 February 2025, par 5

[12] The current constitution is Annexure SR1 to the Statement of Sarah Reid

[13] The Sailing Club Constitution does not defined "Sport". Read in the context of the document as a whole, and in particular clauses 3.1 and 3.2, I take it to be a reference to the sport of sailing.

[14] Statement of Kathleen McCaskie, 21 February 2025

[15] Statement of Kathleen McCaskie, 21 February 2025, Annexure KM1

[16] Statement of Kathleen McCaskie, 21 February 2025, Annexures KM2 and KM3

[17] Statement of Kathleen McCaskie, 21 February 2025, par 46

[18] As it transpired, this did not directly result in Mr Warner's removal from the Committee. He was later determined to have "vacated" his position for allegedly failing to attend two consecutive Committee meetings.

[19] Statement of Sarah Reid, Annexure SR1 clause 36

[20] Statement of Kathleen McCaskie, 14 March 2025, par 6

[21] Respondent's Reply Submissions on Jurisdiction, par 17

[22] Statement of Kathleen McCaskie, 14 March 2025, Annexure KM14

[23] Applicant's Response to Question of Jurisdiction, par 12

[24] Work Health and Safety Act 2011 (ACT), section 19(2)

[25] [2019] FWCFB 1314 at [20] in particular.

[27] Respondent's Submissions on Jurisdiction, 21 February 2025, par 30, citing Application by David Gibson [2020] FWC 3373 at [84]

[28] Statement of Kathleen McCaskie, 21 February 2025, par 68

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