Donald Dwyer v Seymour Racing Club

[2020] FWC 2286

[2020] FWC 2286

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.789FC - Application for an order to stop bullying

Donald Dwyer
v
Seymour Racing Club
(AB2020/118)

DEPUTY PRESIDENT CLANCY MELBOURNE, 1 MAY 2020

Application for an order to stop bullying – jurisdictional issue – whether applicant a worker – jurisdictional objection upheld- application dismissed.

[1] Mr Donald Dwyer is a trainer of thoroughbred racehorses. He is required to pay a licence in order to do so to Racing Victoria Limited. This licence then entitles him to use a local horse racing track. In Mr Dwyer’s case this local horse racing track is that of the Seymour Racing Club (SRC). The SRC is an incorporated association in the State of Victoria.

[2] By application lodged with the Fair Work Commission (the Commission) on 19 February 2020, Mr Dwyer seeks an order to stop bullying (the anti-bullying application) pursuant to s.789FC of the Fair Work Act2009 (the Act).

[3] Mr Dwyer alleges that he has been bullied at work during time spent at the SRC working as a horse trainer. He makes these allegations against other users of the facilities at the SRC and the Chief Executive Officer (CEO) (hereafter collectively referred to as the “Persons Named”).

[4] The anti-bullying application was allocated to me and following a preliminary telephone conference on 5 March 2020 and on 6 March 2020, I issued Directions to the SRC and Mr Dwyer requiring the filing and service of written submissions and documentary materials in relation to the jurisdictional objection raised by the SRC that Mr Dwyer is not eligible to make an application under s.789FC of the Act. The Directions outlined that if any party wished to be heard in relation to the submissions and material they had filed, they were to indicate this in writing. Neither party did so.

Jurisdictional Objection

[5] The jurisdictional objection raised by the SRC has two elements.

[6] The first is that Mr Dwyer is not a “worker” or “at work” at the SRC within the meaning of s.789FC(2) or s.789D(1) of the Act.

[7] The second is that neither the SRC nor any of the persons named are constitutionally covered businesses. As such, it is submitted that the Commission does not have jurisdiction to deal with the anti-bullying application.

Legislative Framework

[8] Section 789FC of the Fair Work Act 2009 (the Act) sets out when a person can make an application to the Commission for an order to stop bullying:

“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.

(3) The application must be accompanied by any fee prescribed by the regulations.

(4) The regulations may prescribe:

(a) a fee for making an application to the FWC under this section; and

(b) a method for indexing the fee; and

(c) the circumstances in which all or part of the fee may be waived or refunded.”

[9] Section 789FD of the Act sets out the requirements for a person to have been bullied at work:

“When is a worker bullied at work?

(1) A worker is bullied at work if:

(a) while the worker is at work in a constitutionally-covered business:

(i) an individual; or

(ii) a group of individuals;

repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member; and

(b) that behaviour creates a risk to health and safety.

(2) To avoid doubt, subsection (1) does not apply to reasonable management action carried out in a reasonable manner.

(3) If a person conducts a business or undertaking (within the meaning of the Work Health and Safety Act 2011) and either:

(a) the person is:

(i) a constitutional corporation; or

(ii) the Commonwealth; or

(iii) a Commonwealth authority; or

(iv) a body corporate incorporated in a Territory; or

(b) the business or undertaking is conducted principally in a Territory or Commonwealth place;

then the business or undertaking is a constitutionally-covered business.

[10] Section 7 of the Work Health and Safety Act 2011 (WHS Act) sets out the meaning of the term “worker”. Section 7(1) of the WHS Act relevantly provides:

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.

[11] Section 789FF of the Act sets out when the Commission may make an order to stop bullying:

“FWC may make orders to stop bullying

(1) If:

(a) a worker has made an application under section 789FC; and

(b) the FWC is satisfied that:

(i) the worker has been bullied at work by an individual or a group of individuals; and

(ii) there is a risk that the worker will continue to be bullied at work by the individual or group;

then the FWC may make any order it considers appropriate (other than an order requiring payment of a pecuniary amount) to prevent the worker from being bullied at work by the individual or group.

(2) In considering the terms of an order, the FWC must take into account:

(a) if the FWC is aware of any final or interim outcomes arising out of an investigation into the matter that is being, or has been, undertaken by another person or body--those outcomes; and

(b) if the FWC is aware of any procedure available to the worker to resolve grievances or disputes--that procedure; and

(c) if the FWC is aware of any final or interim outcomes arising out of any procedure available to the worker to resolve grievances or disputes--those outcomes; and

(d) any matters that the FWC considers relevant.”

Submissions

[12] SRC submits:

•  Section 7 of the WHS Act requires that a person carries out work in any capacity for a person conducting a business or undertaking.

•  The payment of a licence fee by Mr Dwyer to Racing Victoria Limited enables him to use the facilities at SRC.

•  Mr Dwyer is self-employed and operates his own business as a horse trainer.

•  Mr Dwyer does not perform work for either any of the Persons Named or the SRC.

•  The only connection between the SRC and Mr Dwyer (apart from his entitlement to use the SRC facilities) is the requirement to pay SRC $50 if one of his horses finishes in the top 10 of a race meeting.

[13] As such, SRC submits Mr Dwyer is not a worker as defined by s.789FC(2) of the Act.

[14] Mr Dwyer relies on Bibawi v Stepping Stone Clubhouse Inc t/a Stepping Stone & Ors 1 (Bibawi) in submitting that the definition of ‘worker’ in s.7 of the WHS Act is very broad, in that a person need only perform work “in any capacity for” the other person conducting the business or undertaking in order to satisfy the definition. Mr Dwyer further submits that trainers using the SRC facilities fall within the ambit of s.7(1)(i) of the WHS as persons of “a prescribed class.”

[15] Mr Dwyer submits the work he performs at the SRC facilities is of benefit to the SRC. He references paying track usage fees totalling $5,500 in 2018/2019 and $4,000 in 2019/2020 to date. Mr Dwyer submits that while he is not in the narrow interpretation of the term “working for the club” in that the SRC is his employer and paying him a wage, the SRC’s facilities are his workplace where he works on a daily basis. He submits the work he carries out is of benefit to the Club as the payments he makes contribute to the profit of the club.

[16] In reply, SRC submits that as no classes have been prescribed for the purposes of s.7(1)(i) of the WHS Act, Mr Dwyer cannot fall within this part of the s.7 definition. SRC submits that it is the licence Mr Dwyer obtains for the payment of a fee to Racing Victoria Limited which entitles him to use the SRC track and facilities and that this does not make him a worker for the SRC, nor does any payment of $50 in prize money he may be required to make. SRC submits the only business in which Mr Dwyer is a worker is his own horse training business and this is not work performed in the operation of the SRC or businesses operated by any of the Persons Named.

Consideration

[17] As the Act makes clear, a person can only bring an application pursuant to s.789FC for an order to stop bullying if that person is a ‘worker’ and s.789FC(2) provides that a ‘worker’ for the purposes of making an application under s789FC(1) has the same meaning as in the WHS Act.

[18] The proposition that Mr Dwyer is a worker because he falls within the ambit of s.7(1)(i) of the WHS Act as a person of “a prescribed class” is rejected. No classes have been prescribed.

[19] Turning to the balance of s.7(1) of the WHS Act, the definition of a ‘worker’ was discussed by Vice President Watson in Balthazaar v Department of Human Services (Commonwealth), 2in the following terms:

“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).” 3

[20] The Full Bench of the Commission in Bibawi 4agreed with and adopted the Vice President’s analysis and made the additional observation:

“The types of workers listed in paragraphs (a)-(i) of s7(1) are taken to be included in the general definition in the chapeau to the provision, but do no operate to limit it.” 5

[21] The Full Bench in Bibawi confirmed that the definition of “worker” is very broad and a person need only perform work “in any capacity for” the other person conducting the business or undertaking in order to satisfy the definition.

[22] The meaning of the word “work” is not defined in the Act or the WHS Act. As Vice President Watson noted in Balthazaar, there appears to be no limitation on the concept of work. 6

[23] Adopting this reasoning, I accept that in undertaking his horse training activities, Mr Dwyer, carries on work in the broad sense of the word. However, this does not mean that Mr Dwyer is a “worker” for the purposes of Part 6-4B of the Act because the work must be performed for “a person conducting a business or undertaking”.

[24] In Balthazaar, the Applicant making an application for an order to stop bullying argued that because of the carer payments for being the primary carer of his daughter who suffered from a psychotic illness, he was an employee, outworker or volunteer who carried out work for the Commonwealth Department of Human Services. Vice President Watson held that the Applicant’s work as a carer was carried out as part of his parental responsibilities for the benefit of his daughter and not for the Commonwealth Department of Human Services. 7 Specifically, in relation to the meaning of worker for the purpose of the anti-bullying provisions of the Act, the Vice President held:8

…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.” (my emphasis)

[25] This outcome is to be contrasted with Bibawi, in which the Applicant was a member of a clubhouse operated by a community organisation which provides services for persons suffering from mental illness. It was held at first instance that the Applicant could not apply for orders to stop bullying because he was participating in a government-funded program to improve his wellbeing and was therefore not a “worker”. However, on appeal the Full Bench was satisfied the Applicant performed ‘work’ for the community organisation “side by side with staff”, that the ‘work’ included “database entry, newsletter submissions, outreach to members currently not attending, and general clerical duties” and further, that the program was intentionally understaffed so that it could not operate without the assistance and involvement of the clubhouse membership. Notwithstanding he was a volunteer, the Full Bench was satisfied the Applicant performed work for the community organisation.

[26] In this matter, I am not persuaded that Mr Dwyer carries out work for a person conducting a business or undertaking so as to come within the Commission’s anti-bullying jurisdiction. This is because I do not consider Mr Dwyer carries out work for the SRC, let alone any of the Persons Named. Mr Dwyer conceded as much, stating he is “not in the narrow interpretation of the term ‘working for the club’ in that the Club is his employer and paying him a wage.” While Mr Dwyer advanced a submission to the effect that the licence fee he pays to entitle him to use SRC facilities makes the work he performs as a horse trainer a benefit to the SRC because it contributes to its profits, I reject this. To accept this submission would be to accept the proposition that a retail tenant in conducting his or her business, is working for the landlord of the business premises in the sense required by s.7 of the WHS Act.

[27] Mr Dwyer carries out his horse training activities for his own benefit as a self-employed horse trainer. He has not been engaged to provide services for the SRC. He is therefore not a worker within the purposes of Part 6-4B of the Act and consequently is not entitled to make an application under s.789FC of the Act.

[28] Given this finding, it is not necessary that I determine whether Mr Dwyer was at work in a constitutionally covered businesses and I decline to do so.

[29] The Full Bench in Bibawi addressed the Commission’s powers to dismiss an application pursuant to s.587 of the Act in the following terms:

“Section 587(1)(a) of the FW Act empowers the Commission to dismiss an application where it has not been made in accordance with this Act, and s 587(1)(c) similarly empowers dismissal where an application has no reasonable prospects of success. This power may be exercised summarily - that is, an application may be dismissed pursuant to s 587(1) prior to a full hearing being conducted. Full Bench decisions such as Townsley v State of Victoria (Department of Education & Early Childhood Development) and Toma v Workforce Variable Pty Ltd have emphasised that the power to dismiss applications summarily should be exercised cautiously and sparingly, consistent with the principle stated by Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW):

“… the jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion… the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action … is clearly demonstrated.” (references omitted)”

[30] I am satisfied that I have the requisite material before me to reach a definite and certain conclusion Mr Dwyer is not a worker within the definition of s.7(1) of the WHS Act. Therefore, Mr Dwyer does not meet the jurisdictional prerequisites for the making of an application under s.789FC(1) of the Act and I am persuaded that I should exercise my discretion pursuant to s.587(1)(c) of the Act to dismiss the anti-bullying application of Mr Dwyer, on the basis that it has no reasonable prospects of success. An order dismissing the anti-bullying application of Mr Dwyer will be issued along with this decision.

DEPUTY PRESIDENT

Written submissions:
Seymour Racing Club, 19 & 31 March 2020.
Mr Donald Dwyer, 26 March 2020.

Printed by authority of the Commonwealth Government Printer

<PR718744>

 1   [2019] FWCFB 1314.

 2   [2014] FWC 2076.

 3 Ibid at [19].

 4   [2019] FWCFB 1314.

 5 Ibid at [18].

 6   [2014] FWC 2076 at [21].

 7   Balthazaar at [25].

 8 At [36].