Anthony Walsh
[2024] FWC 1514
•11 JUNE 2024
| [2024] FWC 1514 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
Anthony Walsh
(AB2024/248)
| COMMISSIONER SIMPSON | BRISBANE, 11 JUNE 2024 |
Application for an FWC order to stop bullying – Jurisdictional issue – Whether Applicant carries out work for a person conducting a business or undertaking
On 5 April 2024, Mr Anthony Walsh (Mr Walsh / the Applicant) made an application pursuant to s.789FC of the Fair Work Act 2009 (the FW Act) to the Fair Work Commission (the Commission) for an order to stop bullying. The Applicant alleges their employer was, at the relevant times and continues to be, Radio Logan Incorporated (the Station) and the persons named in the application are Mr Mike Bennett, Mr Terry Blacker, Mr Terry Lindsay and Mrs Tracey Bennett (together ‘the persons named’).
There is a jurisdictional issue as to whether Mr Walsh is a ‘worker’ within the meaning of the FW Act and the definition set out in the Work Health and Safety Act 2011 (WHS Act). Under s.789FC(2) of the FW Act for a worker to be eligible the person has to be a worker within the meaning of the WHS Act. The WHS Act s.7(1) relevantly provides:
Meaning of worker
(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.
It is not in dispute that Mr Walsh is a volunteer with the Station. It is in dispute whether the Station is a person conducting a business or undertaking for the purposes of the WHS Act, specifically whether the Station is a volunteer association which is precluded from being a person conducting business or undertaking.
The WHS Act s.5(7)-(8) relevantly provides:
5. Meaning of person conducting business or undertaking
…
(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.
History of the Matter
The matter was allocated to me on 7 May 2024 and I listed it for a conference on 24 May 2024. Following the conference, the matter was adjourned waiting upon a response from the Station regarding the involvement of Mr and Mrs Bennett. Following confirmation from the Station that they wished to respond, and responses were received, the matter was listed for a Directions Hearing on 7 June 2024.
During the hearing on 7 June 2024, the Station informed the Commission that the Station does not have employees. This immediately raised a jurisdictional issue as to whether the Station is a person conducting a business or undertaking under the FW Act. I issued directions to provide submissions as to whether the Station is a constitutionally covered business by 10 June 2024.
Background
The Station is a community broadcasting station operated by volunteers where some parties are engaged on a contractual basis to perform paid work for the Station under separate ABNs, and are paid superannuation. Mr Walsh is a member of the Station and presents a weekly program on the radio.
Mr Walsh alleges he and his wife Karinya Monnie have been bullied by the persons named beginning in 2022 and lodged an application for an order to stop bullying with the Commission.
SUBMISSIONS AND EVIDENCE
Submissions of the Respondent
Mr Lindsay submitted, and Mrs Bennett and Mr Black agreed, that the Station is a not for profit organisation which falls within the meaning of volunteer association, as it does not employ workers. All work performed is either performed by volunteers, or is performed by contractors under their own ABNs who are only workers for superannuation purposes. As such, the Station is not a person conducting a business or undertaking under the WHS Act.
Mr Bennett submitted, and Mrs Bennett and Mr Black agreed, that the rules of the Radio Logan Incorporated Constitution (Rules) (the Station Rules) lead to a conclusion that the Station is not a person conducting a business or undertaking. Section 12B and 25J provides as follows:
“12B No member of the Management Committee shall derive pecuniary gain from the Association by way of salary as a servant or officer of the Association.”
“25J The income and property of the Association whenever derived shall be used and applied solely in promotion of its objects and in the exercise of its powers as set out herein and no portion thereof shall be distributed, paid or transferred directly or indirectly by way of dividend, bonus or otherwise by way of profit to, or amongst the members of the Association.”
Submissions and evidence of the Applicant
The Applicant submitted that the Station qualifies as a person conducting a business or undertaking, based on its organisational structure, operations and financial transactions. The Applicant provided a further excerpt from the Station Rules in support of his submission:
“3. POWERS OF THE ASSOCIATION”
“e) To appoint, employ, remove, suspend or reprimand such managers, clerks, secretaries, servants, workmen and other persons as may be necessary or convenient for the purposes of the Association;”
The Applicant also tendered excerpts from the Station Rules Appendix C: Dispute Handling, Grievance Paths and Dispute Resolution Policies and Procedures Manual in support of his contention, highlighting the Station Rules indicating compliance with the WHS Act:
“In the development of this framework, the Management Committee recognises that 101FM is a community radio station which is required to comply with both the laws of the land and the Code of Practice of the Community Broadcasting Association of Australia.”
“The Laws of the Land, as relevant”
• The Associations Incorporation Act 1981 (Qld)
• The Broadcasting Services Act 1992 (C’wlth)
• Industrial Relations Act 2016 (Qld)“Other Laws of which to be aware”
• The Racial Discrimination Act 1975 (C’wlth)
• The Sex Discrimination Act 1984 (C’wlth)
• The Australian Human Rights Commission Act 1986 (C’wlth)
• The Anti-Discrimination Act 1991 (Qld)
• Work Health and Safety Act 2011 (Qld)
The Applicant notes that non-profit organisations which engage workers and conduct activities with a certain degree of organisation, continuity and structure are ordinarily considered to be persons conducting a business or undertaking. The Applicant asserts that the Station regularly engages contractors and volunteers to perform work, even if it may not have employee workers. The Applicant suggests that the financial transactions undertaken by the Station in compensating contractors and volunteers are indicative of maintaining workers as a person conducting a business or undertaking.
The Applicant submits that the Rules empower the Station to employ persons and otherwise possesses powers which are characteristic of an employer. The Station also allegedly employs persons for services including bookkeeping, cleaning and maintenance, lawn maintenance and sales operations. Members of the sales team are remunerated for each advertising business they bring to the Station.
The Applicant specifically asserts that the Station engaging persons for compensation constitutes employing workers and paying them commission and superannuation in a manner which is inconsistent with forming the view that the Station is a volunteer association. The Applicant tendered the audited financial statement of the Station from the 2022-2023 financial year which lists the fees paid to contractors, subcontractors and on commission separately to the remuneration paid for bookkeeping, cleaning and repairs and maintenance.
The Applicant submits that the organisation of the Station maintains officers in a manner that is consistent with their obligations as a person conducting a business or undertaking under the WHS Act. The Applicant suggests that the management committee function as officers due to their involvement in financial decision-making processes and strategic and operational decisions, and that they are obligated to exercise due diligence under the WHS Act.
CONSIDERATION
I am satisfied that it is apparent from the submissions that the Station is a volunteer association as defined in section 5 of the WHS Act. The submissions of the Station taken together with the audited accounts satisfy me that it is sufficiently clear that the Station is made up of group of volunteers working together for one or more community purposes, and it has no employees of its own. The fact that the Station engages others on a contract does not make the Station a PCBU. As the Station is not a PCBU the Fair Work Commission does not have jurisdiction to deal with Mr Walsh’s application made under section 789FC of the Fair Work Act 2009 and on that basis the application is dismissed. An order to this effect with be issued separately and concurrently with this decision.
COMMISSIONER
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