Gaylene May McDonald

[2016] FWC 300

[2016] FWC 300

FAIR WORK COMMISSION

DECISION

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

Gaylene May McDonald
(AB2015/701)

COMMISSIONER HAMPTON ADELAIDE, 15 JANUARY 2016

Application for an FWC order to stop bullying – jurisdiction – whether applicant is a worker within the meaning of the Act – voluntary association with no employees – applicant not a worker – application dismissed.

1. Background

[1] On 20 October 2015, Mrs Gaylene McDonald made an application for an order to stop bullying under s.789FC of the Fair Work Act 2009 (the FW Act).

[2] The application alleges bullying behaviour by a group of persons who are involved with the Cooktown School of Art Society Inc (CSAS). Mrs McDonald has been involved with CSAS as one of its “volunteers”. Mrs McDonald alleges that the conduct has occurred for the past five years, culminating with her exclusion from the art gallery operated by the CSAS and from the Society itself.

[3] CSAS conducts a gallery which displays and sells original art works from local artists in the Cooktown area. It also assists individual artists to improve their artistic skills through learning, sharing, exhibiting and selling their art. CSAS is small community based not for profit association, made up of individual members who join the Society, and is conducted by a small committee of management.

[4] I understand that Mrs McDonald is a local artist who has been a member of CSAS and involved with other members in assisting with the operation of the gallery.

[5] In the response to the application, CSAS and the individuals named (the respondent parties) referred to what amounts to various jurisdictional matters that arose directly from the application itself. These included the contention that, in effect, Mrs McDonald was not a worker within the meaning of the FW Act and that CSAS is not a constitutionally-covered business. These are related issues that arise from the scope of the anti-bullying provisions under which the application has been made.

[6] Furthermore, the respondent parties have contended that Mrs McDonald has not been on the “roster” of volunteers since 15 August 2015, and that her (and her husband’s) membership of CSAS was cancelled on 4 September 2015. This issue is associated with the capacity of the Commission to make orders, 1 in the event that bullying conduct was found to have taken place.

[7] The Commission held a preliminary conference by telephone on 19 November 2015. During this conference, the parties confirmed their position in general terms and provided an overview of the nature of CSAS and its operations. Given that none of the parties were externally represented and may not have taken legal advice, I indicated that I would issue directions confirming the nature of the issues and providing an opportunity for all parties to confirm the facts and their positions generally. The following issues were confirmed with all parties:

“During the course of the conference three preliminary issues, which arise directly from the application and the response, were raised with the parties:

1. Whether the applicant is or was a worker for the purposes of s.789FC of the Fair Work Act 2009 (the Act);
2. Whether Cooktown School of Art Society Inc t/a the Elizabeth Guzsely Gallery (the Gallery) is considered to be a constitutionally-covered business; and
3. Whether there is a further risk of the alleged conduct continuing against the applicant as a worker in the relevant workplace by the individuals named in the application.”

Based on the positions advanced at the conference, the above issues are genuine jurisdictional matters that should be considered and determined by the Commission prior to any substantive proceedings. These matters go to whether the Commission is able to deal with the merits of the matter. In addition, the first of these issues is a discrete matter where there appeared to be little dispute about the facts. On that basis, I have determined that I should at least initially consider the status of the applicant as a ‘worker’.”

[8] The directions then set out the relevant terms of the FW Act, and related statutory provisions, and outlined the following provisional view:

“This means that volunteers are not considered to be workers where the incorporated association is working for community purposes and the association (and any volunteers) do not employ at least one person as an employee to work for the association.

During the conference, Mrs McDonald accepted that she was a volunteer, however there was some indication that she and other volunteers received a benefit (reduced commission charges). I also understand that it is common ground between the parties that there are no employees engaged by the gallery.

Accordingly, it is not clear, based upon present indications, that Mrs McDonald was a worker as defined. It is however reasonable to provide an opportunity for all parties to provide an informed contribution before any decision is made on that issue, and whether as a result, this application can be further considered by the Commission.”

[9] Directions were issued allowing all relevant parties to provide written evidence and submissions regarding the immediate issue; namely, whether Mrs McDonald was a worker and therefore eligible to bring this application on that basis.

[10] The Commission also indicated that subject to any contrary views, the issue associated with whether Mrs McDonald was a worker within the meaning of the FW Act would be determined on the basis of the written materials.

[11] The parties subsequently lodged very brief written submissions and no request for a hearing on the immediate issue was made. I consider that it is appropriate in all of the circumstances to determine the matter on the basis of the written materials. I did however seek some additional information and submissions from the parties in relation to one aspect arising from the immediate issue.

[12] That additional information included a copy of the rules (constitution) of CASA, details of its membership, and confirmation of the basis upon which a sales commission arrangement works. 2

2. The meaning of a worker under the FW Act

[13] Given the provisions of the FW Act an applicant must be a worker in the relevant workplace when the alleged bullying conduct has taken place. This arises from s.789FC and s.789FD of the FW Act.

[14] Section 789FC of the FW Act provides as follows:

“789FC 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.”

[15] Section 789FD of the FW Act defines bullying conduct as follows:

“789FD 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.”

[16] The term “worker” is defined in s.789FC of the FW Act and this indicates that “worker” has the same meaning as in the Work Health and Safety Act 2011 (WHS Act), but does not include a member of the Defence Force. In general terms, the WHS Act states that a worker is a person who carries out work in any capacity for a person conducting a business or undertaking, including any of the following:

● an employee
● a contractor or subcontractor
● an employee of a contractor or subcontractor
● an employee of a labour hire company who has been assigned to work in the person’s business or undertaking
● an outworker
● an apprentice or trainee
● a student gaining work experience
● a volunteer—except a person volunteering with a wholly ‘volunteer association’ with no employees (whether incorporated or not).

[17] The potential coverage of volunteers as workers under the WHS Act therefore requires consideration of the concept of “a person conducting a business or undertaking” (PCBU) which is provided by Section 5 of the WHS Act in the following terms:

“(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.

(2)  A business or undertaking conducted by a person includes a business or undertaking conducted by a partnership or an unincorporated association.

(3)  If a business or undertaking is conducted by a partnership (other than an incorporated partnership), a reference in this Act to a person conducting the business or undertaking is to be read as a reference to each partner in the partnership.

(4) A person does not conduct a business or undertaking to the extent that the person is engaged solely as a worker in, or as an officer of, that business or undertaking.

(5) An elected member of a local authority does not in that capacity conduct a business or undertaking.

(6) The regulations may specify the circumstances in which a person may be taken not to be a person who conducts a business or undertaking for the purposes of this Act or any provision of this Act.

(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.”

[18] Furthermore, s.4 of the WHS Act includes the following definition of “volunteer”:

““volunteer” means a person who is acting on a voluntary basis (irrespective of whether the person receives out-of-pocket expenses).”

[19] The Workplace Health and Safety Regulations 2011 provide as follows:

“7(3) For subsection 5 (6) of the Act, an incorporated association may be taken not to be a person conducting a business or undertaking if the incorporated association consists of a group of volunteers working together for one or more community purposes where:

(a) the incorporated association, either alone or jointly with any other similar incorporated association, does not employ any person to carry out work for the incorporated association; and
(b) none of the volunteers, whether alone or jointly with any other volunteers, employs any person to carry out work for the incorporated association.”

3. The positions of the parties

3.1 Mrs McDonald

[20] Mrs McDonald contends as follows:

● That earnings (taxable or non-taxable) can also include “in kind” payments, which are defined as payments being made in lieu of monetary benefits;
● CSAS proffers “in kind” payments to some of its members;
● The Treasurer on the committee has received “in kind” payments from CSAS – being an offer of free membership for as long as she held that position;
● The present Treasurer has held that position since the “inducement” was offered, however Mrs McDonald conceded that she could not confirm whether it was still being “paid”;
● Mrs McDonald acknowledged that she could not provide written evidence to prove this position however she indicated her understanding that Centrelink would regard such a benefit as non-taxable income; and
● That if a person is receiving a payment from CSAS then the jurisdictional objection has been met.

[21] Mrs McDonald also made certain contentions about the income of CSAS which are relevant to the question of whether it would be a trading corporation. This is beyond the scope of this decision.

[22] Mrs McDonald did not seek to provide any submissions in reply to the position of the respondent parties outlined below. 3

3.2 Cooktown School of Art Society Inc

[23] CSAS contends that when the Treasurer joined in 2010, a full membership was paid but on a ‘pro rata’ basis. That is, CSAS desperately needed a Treasurer to complete CSAS’s quorum and as a sign of gratitude, the President of the Society decided to award the Treasurer an “honorarium”, which technically gave her free membership for a limited period. Since that time, the Treasurer has continued to pay the full CSAS membership without this “honorarium”.

[24] CSAS also indicated that the membership arrangements that operated in 2009/10 also extended to four other members on the basis of low membership at the time.

[25] CSAS also raised other issues associated with the fact that Mrs McDonald did not file her submission by the time required and did not forward a copy of the material to all the other parties. I note that although the material was filed late, it was ultimately provided to the other parties and they have made a response that has been considered by the Commission.

[26] CSAS also raised issues going to the merit of the application, however, this is beyond the present scope of this decision.

4. Was Mrs McDonald a worker as defined under the FW Act?

[27] During the conference, Mrs McDonald accepted that she was a volunteer and it was common ground that there were no employees engaged by the gallery. However, there was some indication that Mrs McDonald and some other volunteers received a benefit; being a reduced commission charge on their art that is sold by the gallery. The circumstances of the Treasurer were also raised in Mrs McDonald’s submissions.

[28] The artists who have works displayed in the gallery pay a commission to the gallery when their art is sold. The artists may or may not be members of the CSAS. The level of the commission payments vary according to the following arrangements as confirmed by CSAS:

● Non-members of the Society pay 35% commission;
● “Non-working” members (those who do not assist in the operations of the Gallery and/or maintenance of the gardens) pay 30% commission;
● Members who do assist in the operation of the Gallery and/or the gardens pay 20% commission; and
● Executive members of the Society pay 10% commission.

[29] I have dealt with this preliminary issue on the presumption that Mrs McDonald may now be contending that she and/or other committee members were (are) not volunteers due to the “benefits” provided. I have also allowed for the potential that Mrs McDonald is contending that the “benefits” provided may also establish some other basis that would mean that she was a worker or otherwise eligible to bring this application. I must however determine the issue based upon the material that is actually before the Commission.

[30] Given the definition of a worker under the FW Act and the circumstances of the parties, Mrs McDonald would need to either be an employee or a volunteer who is not involved with a volunteer association (as defined). Both are relevant to whether she was “working” for a PCBU, which is a necessary prerequisite for the applicant to be treated as a worker for present purposes.

[31] Mrs McDonald completed the application and cited her position as being that of a volunteer. It is accordingly appropriate to initially consider the difference between an employee and a volunteer and to consider the circumstances of Mrs McDonald in that context.

[32] As outlined earlier, s.4 of the WHS Act defines a “volunteer” as meaning a person who is acting on a voluntary basis (irrespective of whether the person receives out-of-pocket expenses). This is broadly consistent with the approach that has been taken by the Courts and Tribunals on this issue and is a common understanding of the concept. Namely, in general terms, a volunteer is someone who enters into any service of their own free will, or who offers to perform a service or undertaking for no financial gain. 4 The commitments shared between the parties are usually considered moral in nature, rather than legal.5 Payments or benefits unrelated to hours of work or the actual performance of work will not normally by themselves imply that a person is an employee. In these circumstances, any payment or benefit can more aptly be described as an ‘honorarium’ or gift. For example, a worker may receive board and lodgings6 or reimbursements for expenses7 and still be considered a volunteer provided that this was the fundamental nature of the relationship. In other situations, a worker who performs work for non-monetary benefits, such as rent free accommodation, can be considered to be an employee rather than a volunteer if the underlying relationship is objectively intended to be a legal contract of that nature.8 I will shortly return to the implications of the statutory definition of a volunteer.

[33] The reduced commission payments as apparently operated for Mrs McDonald would not turn what is otherwise accepted to be a volunteer relationship into that of an employment contract. That is, the incentive to offer assistance in the Gallery or garden would not in my view change the fundamental nature of the relationship nor the nature of the CSAS itself. Certainly, based upon the present information before the Commission, there would be no basis to conclude that Mrs McDonald was an employee of CSAS.

[34] I turn now to consider the second alternative. In order for Mrs McDonald to be a volunteer who is eligible to bring a s.789FC application, Mrs McDonald must be a volunteer for a PCBU, and not a volunteer in a voluntary association. In the circumstances of this matter, this requires consideration of the statutory parameters set out earlier in this decision and in particular, whether CSAS is a group of volunteers working together for one 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.

[35] I am satisfied that the CSAS fundamentally involves a group of volunteers working together for a community purpose. That is, the operation of the gallery and the encouragement, education and promotion of the local artists, by the local artists, for the benefit of the local community as undertaken by the CSAS, means that the Society is established for one or more community purposes. This satisfies the requirements of the PCBU exclusion in s.5(8) of the WHS Act.

[36] CSAS has as its fundamental object to be an “association of artists and those interested in fine arts, and the appreciation of fine art by holding lectures, field days, workshops and exhibitions”. 9 The operations of CSAS are also consistent with that objective. It has approximately 25 members who pay an annual subscription of $20.00.

[37] In this regard, I note that the relevant Explanatory Memorandum 10 stated as follows:

“26. The term ‘community purposes’ is not defined in the Bill but is intended to cover purposes including:

• philanthropic or benevolent purposes, including the promotion of art, culture, science, religion, education, medicine or charity, and



• sporting or recreational purposes, including the benefiting of sporting or recreational clubs or associations.”

[38] As previously mentioned, during the conference it was common ground between the parties that the CSAS did not engage any employees. Mrs McDonald has endeavoured to advance a position, in effect, that an “in kind” payment to the Treasurer may constitute a relevant benefit of some form. CSAS contends that this was simply an honorarium for a limited period in recognition of her involvement as the Treasurer.

[39] An honorarium is usually a payment in connection with the provision of some service that is rendered nominally without charge or obligation. That is, an ex-gratia payment. The provision of a reduced annual subscription to the Treasurer (or the other members) in the circumstances in which it is said to have occurred would not mean that CSAS had employed that person within the meaning of the FW Act. This is particularly so given that level of the annual subscription and the fact that the gesture was a one-off event. That arrangement would also not change the fundamentally voluntary relationship in the present context.

[40] I note that there is also no indication from any party that there are other individuals who might be considered to be employed in connection with the CSAS.

[41] This then leaves the question as to whether the CSAS is made up (wholly) of volunteers, given the reduced commission arrangements and the one-off “benefit” provided to the Treasurer. As set out earlier, the definition 11 of a volunteer for present purposes is “a person who is acting on a voluntary basis (irrespective of whether the person receives out-of-pocket expenses)”.

[42] I have earlier set out a general discussion of the concept of a volunteer, in contrast to an employee. Dealing more specially with the implications of the “benefits” in the context of the statutory definition, it is evident that the legislation contemplates that an assessment of the fundamental basis upon which the person is acting must be made. That is, whether the person is acting on a voluntary basis.

[43] Mrs McDonald accepted both in her application and during the preliminary conference that she was a volunteer. It is evident that the CSAS is a relatively informal association and there is no indication that the description of volunteer is not appropriate to describe those that are, or were, involved in running it or assisting with its community purpose, including the applicant.

[44] The related question is the implication of the term “(irrespective of whether the person receives out-of-pocket expenses)” in the definition of volunteer. This is recognition that a “volunteer” may receive out of pocket expenses and still be considered to be a volunteer for present purposes. The phrase is also in my view a non-exclusive qualifier. That is, it is not intended to establish that the only assistance provided to a true volunteer may be out of pocket expenses. The fundamental question remains whether the person concerned is a volunteer and has access to things such as reduced meal costs or assisted transport to the workplace for instance would not, depending upon the circumstances, mean that the person could not be considered to be a volunteer for present purposes. Payments or benefits that are made for the work performed, such a directors fees or the like, linked to the actual performance of work, would however, potentially have that result. In that regard, it is necessary to examine the nature and apparent purpose of the payment having regard to the actual context in which the putative volunteer is working.

[45] The commission arrangements are not payments made by CSAS to the persons involved. They are however an incentive to artists to become members and for members to get actively involved with the society. The incentive is linked to membership and/or whether the members are providing assistance. However, there is no link to the amount of assistance provided or the time actually spent in the various roles and the incentive does not appear to operate as some form of director’s fees or similar payment for work for those on the committee or the volunteers. This is reinforced by the nature of CSAS and the particular practical context in which the volunteers operate.

[46] This means that based upon the information before the Commission and the positions adopted by the parties, all of the relevant individuals are volunteers as contemplated by the WHS Act.

[47] Accordingly, for the reasons outlined above, I am not persuaded that CSAS is a PCBU. As the CSAS is not a PCBU, it means that Mrs McDonald was not a worker as defined under the FW Act.

5. Conclusions and order

[48] In the circumstances, I have identified with some particularity the issues that arose from the application and the need for the applicant to be a worker. I have also afforded a reasonable opportunity for Mrs McDonald to persuade the Commission that her circumstances fall within the scope of the relevant provisions of the FW Act and for CSAS to also advance its case. It is appropriate that I deal with the matter based upon the material that is before the Commission.

[49] As a result of the above findings, it is not open on the materials and contentions provided by Mrs McDonald and the other parties for the Commission to find that the applicant was a worker within the meaning of the FW Act. It is also the case that the arrangements in terms of the Treasurer of CSAS and the apparent commission arrangements do not establish any other basis for the Commission to deal with an anti-bullying application in the present context.

[50] Accordingly, there is no jurisdiction to determine this particular application.

[51] Given this finding, I have not dealt with the other two jurisdictional issues, both of which had the very real potential to also lead to a finding that this application was outside of the Commission’s jurisdiction or powers. That is, whether the CSAS is a constitutionally-covered business (a trading corporation) and whether there is any basis upon which Mrs McDonald could establish a future risk of unreasonable conduct towards her as a worker. This last matter, in particular, would be problematic for Mrs McDonald given that she would, even if otherwise dealing with the committee members in the future, not be doing so as a worker. That is, even if the applicant was a worker at the time of the alleged incidents (which I have found was not the case), Mrs McDonald is now not a member of the CSAS and is not involved with assisting the gallery. There is no apparent basis upon which the applicant could now be considered to be a worker in the context of the CSAS and if that is correct, there would be no power for the Commission to make any orders in this matter in any event. 12

[52] I should also make it clear for the benefit of the parties that this decision does not mean that the removal of Mrs McDonald from membership of the Society was fair or reasonable and I have made no findings in relation to that issue or the conduct as alleged by any of the parties in the application and the responses. These are, for reasons set out above, not matters that fall within the scope of the FW Act in the circumstances of Mrs McDonald, but could be issues that may be resolved elsewhere.

[53] The application must be dismissed and I so order.

COMMISSIONER

Conference:

2015

19 November.

Final written submissions:

Mrs McDonald:

2 December 2015.

Cooktown School of Art Society Inc:

7 December 2015

5 January 2016.

 1 This arises from the need for a future risk of bullying conduct directed towards the applicant worker in the workplace to be present – s.789FF of the FW Act.

 2   This additional information was also provided to Mrs McDonald and an opportunity was given for her to make further submissions. No submissions were received, however, Mrs McDonald had already made comments in relation to the receipt of “benefits” and I have had regard to that position.

 3   Confirmed by the applicant on 15 December 2015 via a telephone discussion with my Chambers.

 4   The Macquarie Dictionary Online.

 5   Bergman v Broken Hill Musicians Club Ltd T/A Broken Hill Musicians Club[2011] FWA 1143. See also Nguyen and Le v Vietnamese Community in Australia T/A Vietnamese Communality Ethnic School South Australian Chapter[2014] FWC 3574.

 6   Teen Ranch v Brown (1995) 87 IR 308, 310‒311.

 7   Frattini v Mission Imports [2000] SAIRComm 20.

 8   Cudgegong Soaring Pty Ltd v Harris (1996) 13 NSWCCR 92.

 9   CSAS Constitution at item 02.

 10   Explanatory Memorandum to the Work Health and Safety Bill 2011.

 11 Section 4 of the WHS Act.

 12   See Atkinson v Killarney Properties Pty Ltd and another[2015] FWCFB 6503.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR575023>