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

Murray Grey Beef Cattle Society Limited and Guy Burnett

• [1] Stephen Sims is a director of the Murray Grey Beef Cattle Society Limited ("Society"). He claims to have been bullied at work by another director of the Society, Guy Burnett. On 21 November 2024, he made an application under s 789FC(1) of the Fair Work Act 2009 for an order to stop bullying.
• [2] Section 789FC(1) is available to "[a] worker who reasonably believes that he or she has been bullied at work". The Society and Mr Burnett (together, "the Respondents") deny that Mr Sims was the subject of bullying. But more particularly for present purposes, they contend that as a director of the Society, Mr Sims was and is not a "worker" for the purposes of that provision. On that basis, they submit that the Commission does not have the jurisdiction to deal with the application ("Objection").

• [3] This decision relates to the Objection. In dealing with the Objection it is not necessary to describe the bullying to which Mr Sims alleges he was subjected or to traverse the Respondents' responses to those allegations.

• [4] I have decided to dismiss the Objection. My reasons follow.

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

• [6] This definition is very broad, in that a person need only perform work "in any capacity for" the person conducting a business or undertaking ("PCBU") in order to satisfy the definition.[1]
• [7] The definition contains two primary elements. First, the person must carry out work. Secondly, the work must be carried out for a PCBU. The words of inclusion 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).[2]
• [8] 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)".

• [9] 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."

• [10] I convened a conference on 11 December 2024, which was attended by Mr Sims and Mr Burnett. There was no appearance by the Society. Having heard from Mr Sims and Mr Burnett, I made directions to enable the Objection to be dealt with. Those directions required each party to file and serve "an outline of arguments and any documentary material on which they intend to rely" in respect of the Objection by particular dates, with the Objection to be determined "on the papers". The directions were reduced to writing and sent to the parties by email that day.
• [11] The parties filed limited material. Their submissions were confined to assertions made in emails they sent to my Chambers. No other documentary material was provided.
• [12] It is convenient to reproduce the parties' emails, to the extent that they are relevant to the Objection.
• [13] On 16 December 2024, Mr Burnett wrote in part:

"In this case it appears to me that its quite clear that that Stephen has been elected to office, is not paid and works effectively on an ad hoc basis to discharge his duties as a director. In short, in my opinion he is a director not employee or worker.

Stephen was elected unopposed for the NSW representative as a director to serve/represent NSW members, lead the Society and promote the Murray Grey Breed on behalf of the members within the bounds defined by the constitution.

The term worker is a person engaged in employment or labour. Workers perform tasks in exchange for compensation and on this note, we as directors of the society receive no compensation form the society or benefits for lower fees in any way and receive no 'Award'.

By extension, I do not believe the act applies and as such the commission does not have jurisdiction to hear the complaint."

• [14] On 17 December 2024, John Contarino, President of the Society, wrote in part:

"I can only reiterate, Stephen Sims is the NSW state representative on the Murray Grey Beef Cattle Society (MGBCS) board, he is not renumerated in any way, nor does he receive any benefits from the society for acting in this position.

It is my opinion that the term 'worker' or 'employee' does not apply to Stephen Sims in this instance and therefore does not fall under the jurisdiction of the Fair Work Commission of Australia."

• [15] On 18 December 2024, Mr Contarino further wrote:

"Please find below an extract from the Murray Grey Beef Cattle Society - constitution and how it refers to directors not being remunerated.

I would like for this to be included onto the file please."

• [16] On 2 January 2025, Mr Sims wrote in part:

"In reply to whether I am to be considered a worker, I offer the following:

1. I receive emails almost daily regarding running the Murray Grey Beef Cattle Society.
2. As a Director I have attended 12 monthly meetings (duration usually 3.5 hours) and 3 Special Meetings in 2024 (duration varies).
3. I spend 1 to 2 hours prepping for the Directors meeting.
4. I made and received phone calls from members to discuss areas of concern. This may be as simple as being asked how to do something online or listening to a complaint.
5. I proposed an initiative to scan all Murray Grey magazines for historical/heritage value, this involved gathering all magazines from four different sources across the states. Travel to Armidale from Numbaa over two days (distance 700 km) (duration 8.5 hours). Attend the ABRI office at 8:30 am and devote the day to checking, sorting, and boxing magazines (duration 8 hours). Travel home from Armidale to Numbaa (duration 8.5 hours). I then spent the next two days weighing and sorting items for postage to Melbourne for digital scanning. I was reimbursed for the petrol cost of approx. $370 plus postage cost.
6. Traveling to and from the Sydney Royal Easter Show for the day (travel time 8 hours) (show time 5 hours). As a Director I spoke with all the participants, presented ribbons to competitors, made a video of the cattle in the shed with their ribbons displayed, and uploaded the video to the Murray Grey Facebook page."

• [17] On 16 January 2025, Mr Burnett wrote in part:

"I write to you in response to the latest submission by Stephen Sims and advise that my initial response of both he and I are not to be considered workers as we are volunteers and not renumerated. The submission by Stephen has also made reference to this where he was reimbursed for his reasonable out of pocket expenses but not his time."

• [18] We received no submissions from the Society in reply to Mr Sims's submissions.

• [19] The only basis on which the Respondents contend that Mr Sims is not a worker is that he is not paid for the work he does as a director of the Society. They equate "worker" with "employee".
• [20] It is apparent that the Respondents have failed to grapple with the terms of the Fair Work Act. They did not (and nor did Mr Sims) turn their attention to s 789FC(2) or the broad definition given to "worker" in s 7(1) of the Work Health and Safety Act.
• [21] It seems to be common ground that Mr Sims is a volunteer with the Society within the meaning of s 4 of the Work Health and Safety Act. He does not get paid for his services but can be reimbursed for expenses. But being a volunteer does not preclude Mr Sims from being a worker, as the Respondents contend. To the contrary, the legislation makes clear that a volunteer can be a worker.[3] It is necessary only that the two primary elements of the definition to which I referred above are met: that Mr Sims carries out work and does so for a PCBU.
• [22] There is no controversy that Mr Sims carries out work for the Society. Neither the Society nor Mr Burnett disputed Mr Sims's description of the work he does and has done. I am satisfied that the work performed by Mr Sims is for the Society.
• [23] Neither of the Respondents advanced any argument to the effect that the Society is not a PCBU. In the absence of such submissions, I could infer that the Society does not dispute that it is a PCBU. This would be enough to dispose of the Objection.
• [24] However, I make the following further observation. The Respondents referred me to the Society's Constitution, although they did not provide a copy. It is available to the public on the Society's website.[4] Article 3 of the Constitution sets out the objects for which the Society is established, and describes a broad range of functions and powers. I will not list them all but note in particular sub-article 3(27), which refers to the power to:

"appoint, employ, remunerate, remove or suspend such managers, clerks, secretaries, servants, workmen and other persons as may be necessary or convenient for the purposes of the Society and to establish and maintain superannuation, provident or other similar funds for the benefit of any such employees and their dependants"

• [25] The contents of the Constitution suggest two things. First, the Society is conducting a business or undertaking. Second, the Society is not a volunteer association within the meaning of s 5 of the Work Health and Safety Act.
• [26] On the information available to me, I am satisfied that the Society is a PCBU and that as a director of the Society Mr Sims carries out work for it. He is a "worker" within the meaning of s 7(1) of the Work Health and Safety Act and, by extension, s 789FC(2) of the Fair Work Act.

• [27] For these reasons I dismiss the Objection. In doing so, I make no finding as to whether Mr Sims was bullied at work or whether he is entitled to an order under s 789FF. Mr Sims's application for a stop bullying order may proceed to be heard and will be listed for directions.

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

[2] 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]

[3] See Mr Peter Ryan v Returned & Services League of Australia (Queensland Branch) (RSL Queensland) [2018] FWC 761 and the observations of the Full Bench in Bibawi v Stepping Stone Clubhouse Inc t/a Stepping Stone & Others [2019] FWCFB 1314 at [20]

[4] www.murraygrey.com.au/wp-content/uploads/pdf/2021-Constitution-1.pdf

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