Grass

[2023] FWC 1121

[2023] FWC 1121

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Grass

(AB2020/729)

COMMISSIONER MCKINNON SYDNEY, 11 MAY 2023

Application for an order to stop bullying at work

1. On 30 October 2020, Mr John Grass applied for orders to stop bullying at work under s.789FC of the Fair Work Act 2009 (the Act). The application is made against St Anthony’s Tennis Club (the Club), where Mr Grass is a member. Mr Grass submits that he is a volunteer, committee member and subcontractor in relation to the Club.

1. Under Part 6-4B of the Act, a worker is bullied at work if a person or group repeatedly behaves unreasonably towards the worker (or a group of workers of which they are a member) while they are at work in a constitutionally-covered business, and the behaviour creates a risk to health and safety.[1] Bullying at work does not include reasonable management action carried out in a reasonable manner. If the Commission is satisfied that a worker has been bullied at work, and there is a risk that the bullying at work will continue, orders can be made to prevent its recurrence.

1. Only a worker can apply for orders to stop bullying at work. A worker is a person who carries out work in any capacity for a person conducting a business or undertaking.[2] This includes work as an employee, contractor or subcontractor, or as a volunteer (a person acting on a voluntary basis to carry out work for a person conducting a business or undertaking).

1. The question is whether Mr Grass is a “worker” in relation to the application. I have decided that Mr Grass is not a worker and for this reason, his application has no reasonable prospects of success. These are my reasons.

Chronology

1. The Club manages a tennis court complex behind St Anthony’s Catholic Church in the suburb of Marsfield in Sydney, under licence from the Catholic Church. Mr Grass has been a member of the Club for approximately 38 years.

1. In 2017, Mr Grass joined another tennis group, the NSW Chinese Tennis Association Incorporated (NSWCTA). NSWCTA operates tennis courts in the nearby suburb of Meadowbank in Sydney. In the period since, Mr Grass alleges that members of NSWCTA have tried to take control of the Club by stealth and in breach of both the law and the Club’s constitution.

1. On 30 October 2020, Mr Grass applied to the Commission for orders to stop bullying at work in relation to the Club. The substance of the alleged bullying at work is “ongoing aggressive intimidating conduct” from individuals named in the application who are members of the Club and “their associates”, because of Mr Grass’ support of and for Mr Andrew Hill. Mr Hill is a tennis coach and former Tennis Court Administrator of the Club through his company, AJH Leisure Pty Ltd (AJH). At the time of Mr Grass’ application, Mr Hill had made his own application to the Commission for orders to stop bullying at work in relation to the Club.[3]

1. On 1 November 2020, the Club resolved to expel Mr Grass as a member of the Club by 19 votes to 2, with immediate effect. In practical terms, the measure was to be effective from 8 November 2020 on the next scheduled Sunday afternoon tennis. However, on 7 November 2020, the Club advised Mr Grass that his expulsion was under review by the Club’s Committee.

1. On 12 November 2020, the Club raised a jurisdictional objection to Mr Grass’ application to the Commission, on the basis that Mr Grass was not an employee, committee member or volunteer of the Club and hence not a “worker” for the purposes of Part 6-4B.  

1. On 29 January 2021, Commissioner Cambridge, as he then was, held a conference in relation to Mr Grass’ application. The matter was not resolved, although it appears that at least some agreement was reached because on 10 February 2021, the Club sent Mr Grass a letter dated 8 February 2021. The letter confirmed that he was a “current member” of the Club and that the notice of expulsion it had earlier sent had “not been actioned”. The letter committed to procedural fairness in relation to any future notice of expulsion and then said:

“To avoid any doubt whatsoever, we confirm that you are not a paid and/or unpaid employee of the Club. Further, we confirm that you are not required to undertake any form of employee work for the Club in any manner shape, or form.

To avoid any doubt whatsoever, we confirm that you are not a paid and/or unpaid volunteer of the Club. Further we confirm that you are not required to undertake any form of volunteer work for the Club in any manner shape, or form.”

1. It appears that Mr Grass only received the letter on 22 February 2021. He did not accept the contents of the letter and made his thoughts known to the Club on 23 February 2021.

1. On 3 March 2021, Mr Grass sought to amend his application to remove one individual respondent, Mr Johnny Tang.

1. The matter was listed for a report back conference before the Commission on 16 March 2021. On 19 March 2021, Mr Grass asserted that he was a subcontractor with an independent contractor to the Club and a “worker” for the purposes of Part 6-4B. In a submission filed on 6 April 2021, Mr Grass stated that he was an elected committee member of the Club and thus a volunteer. He also claimed to be performing other volunteer and subcontractor work for the Club. His claim to be a subcontractor “with” the Club was restated by Mr Grass on 15 April 2021.

1. The matter was listed for mention before the Commission on 7 May 2021. On that day, Mr Grass asserted his status as “the elected WH&S representative for the contractor”, again for the purpose of establishing that he was a ‘worker’ entitled to apply for orders to stop bullying at work in relation to the Club. The evidence provided in support of this statement was a short email statement from Mr Hill dated 18 March 2021 in his capacity as Director of “Stars TV”. The statement had the subject line “AJH Sports – Statement” and said this:

“I can confirm Mr. John Grass in his capacity as St Anthony Tennis club member, committee member, volunteer, and subcontractor as part of a team of paid and volunteer workers assist in planning, organising, coordinating, and coaching sporting and recreational/social activities at the association’s facility, promoting the benefits of association membership to visitors, which in turn assures the continuing viability of SATC through increased membership/subscriptions and increased court hire at the facility.”

1. On 7 May 2021, the Commissioner directed Mr Grass to “file and serve all documentary material as supporting evidence to demonstrate the sub-contractorial role he claims to have with the St Anthonys Tennis Club by 4pm on Friday, 28 May 2021”.

1. On 12 May 2021, Mr Grass purported to comply with the direction by filing documents alleging an exclusive independent contracting relationship for the provision of tennis coaching and court hire between Mr Hill and AJH (on the one hand) and the Club (on the other). The alleged exclusive contract claim was rejected by Manousaridis J of the Federal Circuit and Family Court of Australia on 25 January 2023.[4] Documents filed by Mr Grass in response to the Commissioner’s direction of 7 May 2021 did not include any evidence of any work performed by Mr Grass either for the Club, Mr Hill or AJH.

1. On 20 October 2021, Mr Grass invited the Commissioner to determine if he had standing in the proceeding as a worker “based on the evidence provided by Mr Hill that I provided sub contractor services to him that assisted the viability of SATC” (the Club). The evidence to which Mr Grass referred was the short statement from Mr Hill extracted at paragraph [14] above. The Commissioner declined the invitation by reference to the stage of the proceedings. The matter was then listed for mention on 27 October 2021.

1. The application was subsequently adjourned pending the outcome of related Federal Circuit and Family Court proceedings between Mr Hill and AJH and the Club. Judgment in those proceedings was delivered on 25 January 2023 and (in relation to penalty) on 12 April 2023.

1. On 16 March 2023, the application was listed for hearing in relation to whether Mr Grass is a worker for the purposes of the application. At the hearing, Mr Grass relied on the following matters:

1. He is a volunteer for the Club because he is a long-term member who encourages people to join the Club and in doing so, increases its fee revenue.

2. He is a subcontractor to AJH “at times”. While he is semi-retired, he sometimes helps Mr Hill and when he does, he works through AJH. On Sunday mornings, Mr Hill has regular coaching sessions at the Club. Before students arrive, AJH holds a session to train up newer coaches. Mr Grass volunteers in this activity but is not paid.

3. On 28 February 2023, Mr Grass registered his own company, John Grass Pty Ltd for purposes not associated with performing work in or for the Club.

4. Mr Grass lives in the general area of the Club. His exercise routine takes him past the courts. He also goes to the courts on two mornings each week as part of his exercise routine. If there is something to be done at the Club, he just does it or reports it to Mr Hill.

Consideration

1. The evidence does not establish that Mr Grass is a worker in relation to his application.

1. Mr Grass is not a worker in the business of the Club, although it is named in the application as his legal “employer/principal”. On the evidence, Mr Grass has not been required, or authorised, to perform any work for the Club since 8 February 2021. If Mr Grass encourages other people to join the Club, he does so for his own reasons rather than in the context of carrying out work for the Club. There is no evidence that Mr Grass subcontracts to the Club or that he is one of its elected committee members. Minutes of the Annual General Meeting held on Sunday 19 July 2020 show the results of an election for office bearers for the financial year 2020/2021. Mr Grass was not elected to the committee. There is no more recent evidence to alter or contradict the position.

1. Is Mr Grass instead a worker in the business of AJH? The totality of the evidence is a late made assertion from Mr Grass to this effect, and an equivocal statement from Mr Hill in support of Mr Grass’ application. I say equivocal because the statement from Mr Hill does not mention AJH at all. It bears the branding of “Stars TV”, of which it appears that Mr Hill is also Director. It refers in a general way to Mr Grass acting in various capacities for the benefit of the Club, including as “member, volunteer, and subcontractor as part of a team of paid and volunteer workers”. The statement is of limited probative assistance.

1. The application itself makes no mention of any contract between Mr Grass and AJH or any work that Mr Grass performs for Mr Hill or for AJH. The application describes Mr Grass simply as Mr Hill’s support person – a matter borne out by the conduct of Mr Grass and Mr Hill in proceedings before the Commission.

1. The assertion made by Mr Grass about being a subcontractor to AJH is unreliable, both because it is not supported by any independent evidence and because of the context in which it is made. Mr Grass is seeking to establish his standing to bring the claim. To this end, his description of what makes him a “worker” for the purposes of Part 6-4B has evolved over time.

1. At first, Mr Grass relied on his status as a volunteer for the Club. After the Club advised on 8 February 2021 that he was not required to perform any kind of work, including as a volunteer, Mr Grass asserted that he was a subcontractor to the Club (on 19 March 2021 and 15 April 2021). On 6 April 2021, he claimed to be a volunteer on the basis that he was an elected committee member of the Club. On 7 May 2021, Mr Grass claimed to be the “elected” work, health and safety representative for AJH. In October 2021, Mr Grass submitted that at times he was a subcontractor to AJH. At the hearing on 16 March 2023, Mr Grass submitted that he is a volunteer because he is a long term member of the Club and encourages other people to join; a volunteer because if there is something to be done at the Club when he attends as part of his exercise routine he “just does it” or reports it to Mr Hill; and a subcontractor to AJH because he helps Mr Hill train newer coaches on Sunday mornings.

1. Mr Hill’s statement is also unreliable, because of its equivocal nature and in circumstances where it is affected by a conflict of interest in relation to Mr Grass, who is acting as support person for Mr Hill in related Commission and court proceedings.

1. I am prepared to accept that Mr Grass sometimes plays tennis with Mr Hill on the Club’s premises. But that does not make him a worker in the business of AJH. It is not evidence of him “carrying out work for”, and in the business of, AJH. There is no evidence to corroborate the existence of a work relationship between them. There is for example no roster, or schedule of work, or task list, or even any correspondence between Mr Hill and Mr Grass about his performance of work for AJH. There is no minute of any meetings where Mr Grass was elected as work, health and safety representative for AJH, or any evidence of safety-related representative duties undertaken by Mr Grass for the benefit of AJH. Despite what might be expected given the statement from Mr Hill, there is also no supporting evidence of his carrying out work in planning, organising, coordinating, or coaching activities for AJH at the Club’s facility other than the assertions of Mr Grass.

1. Statutory declarations filed by other tennis coaches working for AJH make no mention of Mr Grass. In response to an express direction from the Commission to file evidence of his subcontracting relationship, Mr Grass produced documents going to a purported exclusive commercial arrangement between AJH and the Club, but nothing to confirm the existence of any work-based relationship between Mr Grass and AJH.

Conclusion

1. Mr Grass has not established any objective basis upon which it could be said that he is a worker in relation to his application, either because of work carried out for the Club or for AJH, or for another constitutionally-covered business. At its highest, the evidence establishes that Mr Grass is a member of the Club who plays tennis with Mr Hill and others, primarily for the purpose of exercise and social interaction and that Mr Grass is Mr Hill’s support person in related Commission and court applications.

1. As Mr Grass is not a “worker”, the Commission cannot be satisfied that there is a risk that Mr Grass will continue to be “bullied at work” by the group of individuals named in his application. It follows that there is no reasonable prospect of orders being made to stop bullying at work in relation to Mr Grass.

1. The application is dismissed.

COMMISSIONER

Appearances:

J Grass on his own behalf.
S Alexander of Alexanders Lawyers on behalf of the respondent.

Hearing details:

2023.
Sydney (by video):
March 16.

[1] Fair Work Act 2009 (Cth), s.789FD.

[2] Fair Work Act 2009 (Cth), s.789FC(2); Work, Health and Safety Act 2011 (Cth), s.7.

[3] Hill AB2020/380.

[4] Hill v St Anthony’s Tennis Club [2023] FedCFamC2G 29.

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