Jacqueline Laughlin v Murray Grey Beef Cattle Society Limited and John Contarino
[2025] FWC 668
•6 MARCH 2025
| [2025] FWC 668 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
Jacqueline Laughlin
v
Murray Grey Beef Cattle Society Limited and John Contarino
(AB2024/844)
| COMMISSIONER SLOAN | SYDNEY, 6 MARCH 2025 |
Application for an FWC order to stop bullying
Jacqueline Laughlin is a director of the Murray Grey Beef Cattle Society Limited (“Society”). She claims to have been bullied at work by the President of the Society, John Contarino. On 7 November 2024, she made an application under s 789FC(1) of the Fair Work Act 2009 for an order to stop bullying.
Section 789FC(1) is available to “[a] worker who reasonably believes that he or she has been bullied at work”. The Society and Mr Contarino (together, “the Respondents”) deny that Ms Laughlin was the subject of bullying. But more particularly for present purposes, they contend that as a director of the Society, Ms Laughlin 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”).
This decision relates to the Objection.
Determination
I have decided to dismiss the Objection. My reasons follow.
The relevant statutory framework
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:
“7 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.”
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]
The definition contains two primary elements. First, the person must carry out work. Second, 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]
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)”.
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.”
The parties’ positions
I convened a conference on 18 December 2024, which was attended by Ms Laughlin and Mr Contarino. Having heard from the parties, 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.
The parties filed limited material. Their respective positions were set out in emails they sent to my Chambers. In large part, those emails raised matters going to the merits of Ms Laughlin’s application, as opposed to the Objection. It is not necessary for present purposes to traverse those matters. I will only address the emails to the extent that they relate to the Objection.
On 14 January 2025, Mr Contarino (who I understood to be writing on behalf of himself and the Society) wrote in part:
“My objection is that Jacqueline Laughlin the VIC state representative on the Murray Grey Beef Cattle Society (MGBCS) board, is not renumerated in any way, nor does she 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 Jacqueline Laughlin in this instance and therefore does not fall under the jurisdiction of the Fair Work Commission of Australia.
Please find below an extract from the Murray Grey Beef Cattle Society’s constitution and it’s reference to directors not being remunerated.
(Reproduced as per original)
In an email received by my Chambers on 1 February 2025, Ms Laughlin wrote:
“In response to classification of a worker for myself in the Murray Grey Society, I put the following.
For Two months, 2-3 days a week I worked on a marketing plan. This also entailed contacting all the Promotion Groups and discussing their needs and finances. I found many dormant and would require further work and assistance.
I also worked on and presented a document that provided detail to Directors and the Executive Officer (due to their inexperience and knowledge) acceptable and procedural responsibilities. Also a Charter for the Society. This took some weeks to finalize.
…
I drove to Melbourne to pick up promotional posters, 7 hour round trip, that could be used within a marketing campaign…
…
Every meeting required approximately 1 hour to examine and note the previous minutes and the forthcoming agenda.”
(Reproduced as per original)
On 7 February 2025, my Chambers received an email from Mr Contarino responding to that of Ms Laughlin. It is not necessary to reproduce it in its entirety. In summary, Mr Contarino contended that preparation for Board meetings “is an expectation of any board member”. As to the other work Ms Laughlin claimed to have performed, Mr Contarino asserted that she had not been instructed by the Board to undertake it and that it was, in any event, of limited quality or usefulness.
Consideration
The only basis on which the Respondents contend that Ms Laughlin is not a worker is that she is not paid for the work she does for the Society. They equate “worker” with “employee”.
It is apparent that the Respondents have failed to grapple with the terms of the Fair Work Act. They did not (and nor did Ms Laughlin) 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.
It seems to be common ground that Ms Laughlin is a volunteer with the Society within the meaning of s 4 of the Work Health and Safety Act. She does not get paid for her services. But being a volunteer does not preclude Ms Laughlin 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 Ms Laughlin carries out work, and does so for a PCBU.
I am satisfied that Ms Laughlin carries out work and that the work is for the Society. At the very least, the Respondents accept that she prepares for and attends Board meetings. Their attempts to diminish the other work described by Ms Laughlin are not compelling. That is, the Respondents seem to suggest that any other work should not be considered unless Ms Laughlin was instructed by the Board to undertake it. They have not explained why that is the case. Further, I am not convinced that whether a person “carries out work” is to be assessed against the quality or utility of the work outputs.
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.
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”
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.
On the information available to me, I am satisfied that the Society is a PCBU and that as a director of the Society Ms Laughlin carries out work for it. She 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.
Conclusion
For these reasons I dismiss the Objection. In doing so, I make no finding as to whether Ms Laughlin was bullied at work or whether she is entitled to an order under s 789FF. Ms Laughlin’s application for a stop bullying order may proceed to be heard and will be listed for directions.
COMMISSIONER
[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] by authority of the Commonwealth Government Printer
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