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[2018] FWC 7471
General information, not legal advice.
Fair Work Commission
2018-12-14
Original judgment source is linked above.
[2018] FWC 7471[Note: An appeal pursuant to s.604 (C2018/7096) was lodged against this decision.]
s.789FC - Application for an order to stop bullying
Application for an FWC order to stop bullying - jurisdiction objection - whether applicant is a worker - no jurisdiction - application dismissed.
[1] Mr Magdy Bibawi has made an application for an order to stop bullying against Stepping Stone Clubhouse Inc t/a Stepping Stone (Stepping Stone) which is a service for people with diagnosed mental illness. Mr Bibawi alleges that a number of employees of the service have engaged in bullying behaviour such as continuous intimidation, aggressive behaviour; threatening and stalking.
[2] Mr Bibawi attended Stepping Stone until he was banned from the service. As an attendee, he is described as a member. Stepping Stone provides activities that members volunteer to participate in. The activities are designed to assist members develop the self-esteem, social skills, vocational skills and prevent isolation.
[3] Mr Bibawi submits that he is a volunteer at Stepping Stone Clubhouse. Stepping Stone submits that he is a participant in the Stepping Stone Clubhouse program and is neither a paid employee nor a volunteer.
[4] In response to claims of bullying behaviour Stepping Stone advised that it is the role of staff as mental health support workers to inform members when their behaviour is inappropriate. This is what happened to Mr Bibawi.
[5] Mr Bibawi says the alleged bullying behaviour increases his anxiety and puts him at risk of losing his self-control. Mr Bibawi seeks to return to volunteering at Stepping Stone. Mr Bibawi also seeks the supervision of the Fair Work Commission (the Commission) while he volunteers, to ensure his safety.
[6] Stepping Stone say that Mr Bibawi is a voluntary participant in the service provided by Stepping Stone. Further, that Mr Bibawi does not meet the definition of a "worker". Stepping Stone say it employs Mental Health Support Workers to provide support and assistance to members and that Mr Bibawi's allegations of bullying behaviour are instances of Mental Health Support Workers intervening when Mr Bibawi has behaved inappropriately. Stepping Stone say it is part of the Mental Health Support Worker role to do this.
[7] In order for the Commission to deal with conduct covered by anti-bullying laws the conduct must take place while the 'worker' is at work in a 'constitutionally-covered business'.
[8] Therefore prior to dealing with any allegations of conduct covered by the anti-bullying laws, it is necessary to decide whether Mr Bibawi is a worker as defined and whether Stepping Stone is a constitutionally covered business. If it is decided that Mr Bibawi is not a worker for the purposes of the Fair Work Act 2009 (the Act) or Stepping Stone is not a constitutionally covered business then the Commission has no jurisdiction to deal with the conduct covered by anti-bullying laws.
[9] For the purposes of s.789FC of the Act, "worker" has the same meaning as in the Work Health and Safety Act 2011 (the WHS Act).
[10] Section 7 of the WHS Act provides the definition of worker as being:
1. A person who carries out work in any capacity for a person conducting a business or undertaking, including work as (for example):
[11] s.4 of the WHS Act provides a definition of 'volunteer' -
"volunteer" means a person who is acting on a voluntary basis (irrespective of whether the person receives out-of-pocket expenses).
[12] The explanatory memorandum to the WHS Act states that a broad definition of 'worker' is to be adopted. The memo says that this is to recognise the changing nature of work relationships. The definition covers workers performing work in any capacity.
[13] Volunteers are covered by the definition. Additionally, they must be in a work arrangement as to make them a 'worker' in the relevant context of the WHS Act.
[14] Vice President Watson notes in the matter of Arnold Balthazaar v Department of Human Services [2014] FWC 2076 (Balthazaar) that:
[26]... 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. ..." (emphasis added)
[15] Both Mr Bibawi and Stepping Stone agree that Mr Bibawi applied for membership at Stepping Stone on 18 January 2012. Mr Bibawi commenced his participation in Stepping Stone activities on 1 February 2012.
[16] Mr Bibawi has participated in Stepping Stone's Work-Ordered Day Program. What is disputed is whether that participation is as a volunteer or as part of a program based on the Clubhouse model of psychosocial rehabilitation.
[17] In this regard, I accept that the Work-Ordered Day Program involves Stepping Stone members such as Mr Bibawi and staff working side by side in managing and running the Clubhouse.
[18] Mr Bibawi handled petty cash, data input, tours of the Clubhouse and orientation for new members as part of that program. Mr Bibawi spent 8 hours per week on average participating in the Work-Ordered Day Program.
[19] Mr Bibawi also received Mobility Allowance from Centrelink. The Mobility Allowance is a regular payment to help the disabled, ill or injured with essential travel costs. Recipients who undertake voluntary work for at least 32 hours every 4 weeks on a continuing basis are eligible for the payment.
[20] Stepping Stone objects to Mr Bibawi's application. Stepping Stone say that Mr Bibawi was not a "worker" for the purposes of the Act.
[21] Mr Bibawi says he is a "volunteer and member" of Stepping Stone. Mr Bibawi says the Act applies to him.
[22] Mr Bibawi says that he is a "worker" because he "carries out work for Stepping Stone, including work as a volunteer" under s.7(1)(h) of the WHS Act. Mr Bibawi says he is "a worker who reasonably believes that he has been bullied at work" under s.789FC(1) of the Act.
[23] Stepping Stone say that Mr Bibawi is a "voluntary participant" in a mental health program that they provide to members of the community with a history of diagnosed mental illness. Stepping Stone say that they employ Mental Health Support Workers to support and assist their members with rehabilitation as part of the program.
[24] Stepping Stone is also an Incorporated Association. By its Constitution, Stepping Stone's Management Committee necessarily consists of volunteers, including 3 Stepping Stone members. Mr Bibawi was on Stepping Stone's Management Committee from 2015-2016.
[25] Stepping Stone is a registered charity and not for profit organisation. Stepping Stone operates predominantly through state government funding.
[26] Stepping Stone currently employs an Executive Director, Program Director, Assistant Director, People and Culture Officer as well as 16 Mental Health Support Workers.
[27] Stepping Stone's members are insured under Public Liability insurance, not WorkCover or Voluntary Workers' Insurance.
[28] Mr Bibawi submits that the Work-Ordered Day Program is designed to include members in every aspect of the operation of Clubhouse programs. Mr Bibawi submits that the program is intentionally understaffed so that it could not operate without the assistance and involvement of the membership. Mr Bibawi says that this, together with his earlier membership of Stepping Stone's Management Committee, is clear evidence of his position as a volunteer performing work for Stepping Stone.
[29] Stepping Stone's website provides that membership to their Clubhouse is free.
[30] Stepping Stone employs a number of Mental Health Support Workers who are paid according to the Social, Community and Home Care Disability Services Award 2010. The Stepping Stone Policy and Procedure Manual provides that the Management Committee is the employer of all Stepping Stone Clubhouse Staff.
[31] Stepping Stone is therefore not a wholly 'volunteer association', and not exempt from the anti-bullying provisions of the Act.
[32] The Clubhouse International website provides under the heading "Must I work? If so, do I get paid for it?" that,
"No members are required to work. However, most members help out sooner or later because of all that has to be done to maintain the Clubhouse. Members are not paid for the volunteer work they do at the Clubhouse, but any member who wants or needs to have paid employment can find help gaining and keeping a paid job through the Clubhouse's employment programs".
[33] The website provides additionally that "Membership and participation at the Clubhouse is completely voluntary. Each individual decides how much and how often they wish to be involved."
[34] The Stepping Stone Clubhouse Member's Handbook provides relevantly that "Members have the opportunity to participate in all the work of the Clubhouse, including administration, research, enrolment and orientation, reach out, hiring, training and evaluation of staff, public relations, advocacy and evaluation of Clubhouse effectiveness".
[35] These documents make it clear that there is no obligation on members to participate in the activities on offer at Stepping Stone. The documents also clarify that the activities to be performed by willing members contribute to the operational running of the Stepping Stone Clubhouse. Members perform these activities, if they have indicated they wish to do so, at the direction and under the supervision of the Mental Health Worker employees at Stepping Stone.
[36] Mr Bibawi's activities do contribute to the Stepping Stone Clubhouse. But is this sufficient to establish that he was working as a volunteer?
[37] In my view, and as described in Balthazaar Mr Bibawi's relationship with Stepping Stone is a relationship outside the context of paid or unpaid work in the commonly understood sense. His participation is part of a program and the activities undertaken are opportunities and experiences given to the participants at Stepping Stone.
[38] While the anti-bullying legislation is intended to cover a broad range of work arrangements it is not unlimited. This important relationship between Mr Bibawi and Stepping Stone is not 'work' of a paid or unpaid type such as would be done by a volunteer, it is done as part of a program, funded by Government, to improve the well-being and mental health of its participants such as Mr Bibawi.
[39] Therefore Mr Bibawi is not a person who carries out work in any capacity at Stepping Stone as defined in s.7 of the WHS Act.
[40] Accordingly, there is no jurisdiction to determine this application.
[41] Having found there is no jurisdiction, I have not dealt with the other jurisdictional issue, as to whether Stepping Stone is a constitutionally covered business. In my view however there is a real potential that there could also be a finding that Stepping Stone is not a constitutionally covered business and for this reason also is outside the Commission's jurisdictions or powers.
Future participation at Stepping Stone by Mr Bibawi
[42] While Mr Bibawi cannot progress this application for reasons outlined above, it is noted that subsequent to being banned, there is a process that potentially allows a member to return to Stepping Stone.
[43] This is detailed by Ms Samantha van Barneveld in her statement as follows:
"As is typical procedure, I was aware that he would be taking a month off and would be allowed to return after a chat with management ensuring it was the right time to be back in the Clubhouse environment."
[44] Mr Bibawi may wish to consider, in light of this decision, whether he wishes to participate in such a discussion. It should be noted that this has only been raised as a suggestion and in no way forms part of this decision.
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