Peter Tippett v Down to Earth (Victoria) Co-Operative Society Limited

[2022] FWC 2569

[2022] FWC 2569

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Peter Tippett
v

Down To Earth (Victoria) Co-Operative Society Limited and others

(SO2022/309)

DEPUTY PRESIDENT COLMAN MELBOURNE, 30 SEPTEMBER 2022

Application for orders to stop bullying – applicant not a ‘worker’ within the meaning of s 789FC(2) – application dismissed

1. This decision concerns an application by Mr Peter Tippett under s 789FC of the Fair Work Act 2009 (FW Act) for anti-bullying orders against Down to Earth (Victoria) Co-operative Society Limited (DTE) and four named individuals, Robin McPherson, Sue Helson, Kathy Ernst and Kate Shapiro. DTE is a not-for-profit entity that organises and funds ‘ConFest’, an annual lifestyle festival. The individuals are directors of DTE. Mr Tippett undertakes work for DTE as a volunteer. He contends that he has been subjected to bullying by DTE and the four individuals. The respondents object to the application on the jurisdictional ground that Mr Tippett is not a ‘worker’ for the purposes of the anti-bullying provisions in the FW Act. They also deny that Mr Tippett has been subjected to bullying.

1. The Commission may make an anti-bullying order if it is satisfied that a ‘worker has been bullied at work’, and that ‘there is a risk that the worker will continue to be bullied at work’ (s 789FF(1)(b)(i)). A worker is ‘bullied at work’ if, while the worker is at work in a constitutionally-covered business, an individual or group of individuals ‘repeatedly behaves unreasonably towards the worker’ and ‘that behaviour creates a risk to health and safety’ (see s 789FD(1)).

1. Mr Tippett submitted that the respondents had behaved unreasonably towards him in various ways, including the following:

·     Mr McPherson had removed him from email lists without following proper processes and had excluded him from various subcommittees.

·     Mr McPherson, Ms Helson and Ms Ernst had refused to include him in email lists without following proper processes.

·     Mr McPherson and Ms Helson had asked him to perform impossible tasks and attacked him when the tasks were not completed.

·     Mr Tippett’s application for a debit card was stalled without explanation.

·     All four individual respondents had prevented him from participating in meetings, and had attacked him in meetings, including by calling him ‘childish’, talking over him, and yelling at him.

1. Mr Tippett stated in his application that he had witnessed this behaviour being directed at other volunteers also, and that some of them had then left DTE because of the detrimental effect that the behaviour was having on their mental health. He said that volunteers would avoid meetings and let their membership of DTE lapse as a means of protecting themselves. Mr Tippett contended that an order should be issued to prevent such behaviour happening again.

1. The respondents submitted that the Commission has no power to issue an anti-bullying order because DTE is a volunteer association and is therefore excluded from the operation of the anti-bullying provisions in the FW Act. They also contended that DTE is not a constitutionally-covered entity. As to the merits of the application, the respondents denied that Mr Tippett had been subjected to bullying. They contended that Mr Tippett had, among other things, attacked people in emails to the membership, and that their reasonable criticisms of Mr Tippett’s behaviour did not constitute bullying. The respondents submitted that in any event there could be no risk of Mr Tippett being bullied in the future because on 24 August 2022 the board had directed Mr Tippett to cease his volunteering activities for DTE.

Consideration

1. Mr Tippett’s application must be dismissed because he is not a ‘worker’ for the purposes of the anti-bullying provisions in Part 6-4B of the FW Act. ‘Worker’ is defined in s 789FC(2) as having the same meaning as in the Work Health and Safety Act 2011 (WHS Act). Section 7(1) of the WHS Act provides that a person is a worker if the person carries out work in any capacity, including as a volunteer, for a ‘person conducting a business or undertaking’. This expression is defined in s 5 of the WHS Act. There are several exclusions, two of which were relied on by the respondents. One is found in s 5(7), which states that a ‘volunteer association does not conduct a business or undertaking’ for the purposes of the WHS Act. ‘Volunteer association’ is defined in s 5(8) as:

“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”.

1. A second exclusion is found in the Work Health and Safety Regulations 2011 made pursuant to s 5(6) of the WHS Act. It is framed in terms similar to the first exclusion but relates to incorporated associations. Regulation 7(3) states that an incorporated association is not 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’, provided that the association and its volunteers do not ‘employ any person to carry out work for the incorporated association’.

1. In my view, DTE clearly falls within the second exception. DTE was incorporated as a non-distributing co-operative under the Co-operatives National Law Application Act 2013 (Vic). The organisation’s purposes and activities are set out in its rules. Rule 5 and Part 2 of Appendix 2 provide that the primary activity of DTE is to organise and fund ‘ConFest’ and ‘ConFab’, and that these events provide ‘direct public benevolent action as well as education and support of the arts.’ DTE explained that ConFest is a festival gathering of conferences and workshops held annually over several days relating to community-based topics including art, culture, spirituality, personal growth, theology, building communities, learning and education, physical activity, sport, and recreation. ConFab is a related gathering. I note that DTE’s rules require all of its funds and property to be applied solely towards carrying out its primary activity. I conclude that the purposes of DTE are or at least include community purposes.

1. The respondents submit that they do not employ any person to work for DTE. The expression ‘employ any person’ in reg 7(3) has its ordinary legal meaning, which is to employ a person as an employee. It does not mean ‘to engage a person to provide a service’. That would render the exclusion meaningless because any association is likely to engage people to provide services. DTE tendered its financial statements for the last three financial years. They show no expenditure or liability in respect of wages or employment-related matters. Even though this evidence does not speak directly to whether DTE employs anyone to work for it today, it is consistent with DTE’s submission that it does not. Mr Tippett said that DTE engages volunteers to work as ConFest rangers, who provide security and information services during ConFest, and that rangers are provided with uniforms and tools, are rostered for work, and receive discounted tickets to ConFest. But they are not paid. These rangers are not employees of DTE because there is no work for wages bargain between the parties. Rangers are volunteers. Mr Tippett said that DTE has also engaged people in the past to provide training and to act as election scrutineers. But that does not mean that they were employees of DTE. In light of the financial statements, I find that they were contractors. Even if any of these persons had been an employee of DTE, it is likely that they would have been casuals. A casual is typically employed during each separate engagement, not between engagements. And in any event, it is not claimed that DTE currently employs anyone as a trainer or electoral scrutineer. There is no suggestion that any volunteers employ people to work for DTE.

1. I conclude that DTE is an incorporated association that consists of a group of volunteers working together for a common community purpose, and that neither DTE nor any of its volunteers, whether alone or jointly with others, employs anyone to work for the association. DTE therefore falls within the exclusion in Regulation 7(3). It is not a ‘person conducting a business or undertaking’, and Mr Tippett does not carry out work for such a person. He is therefore not a ‘worker’ for the purposes of the anti-bullying provisions in the FW Act. I also consider that it is highly unlikely that DTE is a trading corporation or any other form of constitutionally-covered business, however it is not necessary to determine this question. The jurisdictional objection must be upheld.

1. Even if I had concluded that Mr Tippett was a ‘worker’, I consider that Mr Tippett was not subjected to bullying, because there is no indication that the conduct of which Mr Tippett complains created any risk to his health and safety while he was at work. In his application, Mr Tippett referred to the safety risks allegedly encountered by other volunteers. Of course, much of this is hearsay and therefore unreliable. There is an insufficient basis to conclude that there was any risk to the health and safety of other persons. However, an anti-bullying application is fundamentally concerned with the workplace health and safety of the applicant, not of other people. In my view, this is the only sensible way to read s 789FD(1). Mr Tippett did not say how his own health and safety was placed at risk by the conduct of the respondents. During the proceeding, the most that Mr Tippett could say about this question was that the conduct ‘does take its toll’. There is no evidence or information suggesting that the respondents’ conduct created any risk to Mr Tippett’s physical or mental wellbeing. I find that the conduct of which Mr Tippett complains did not create a risk to his health or safety, and that he was therefore not subjected to bullying.

1. Further, there is no reason to fear that Mr Tippett will be bullied in the future. The board of DTE has directed that he cease his volunteering activities. Mr Tippett said that he was required to undertake 24 hours of volunteering as a condition of his membership. But Mr Tippett has already completed his 24 hours of service for this financial year. The possibility of future bullying is a distant and speculative one. Mr Tippett contended that the board’s letter of 24 August 2022 was a tactic to deprive him of the chance to have his claim determined. However, the purpose of an anti-bullying application is not to right past wrongs, but to protect a worker’s health and safety. If no protection is needed, no order can be made.

1. In conclusion, Mr Tippett is not a ‘worker’ for the purposes of Part 6-4B of the FW Act. The respondents’ jurisdictional objection is upheld. In any event, Mr Tippett was not bullied at work, and I am not satisfied that he is at risk of being bullied in the future.

1. Mr Tippett’s application is dismissed.

DEPUTY PRESIDENT

Appearances:

P. Tippett for himself
C. Mossman for the Respondents

Hearing details:

2022
Melbourne
29 September

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