Robert Neely

[2021] FWC 3484

[2021] FWC 3484

FAIR WORK COMMISSION

DECISION

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

Robert Neely
(AB2021/62)

COMMISSIONER SIMPSON BRISBANE, 17 JUNE 2021

Application for an order to stop bullying - jurisdictional issue – whether a person conducting a business or undertaking – no jurisdiction – application dismissed.

[1] This matter involves an application brought under s. 789FC of the Fair Work Act 2009 (The Act) by Mr Robert Neely (the Applicant) against Named Person, Mr Glen Nichols (Person Named), who the Applicant alleged to have bullied him at work. The Applicant is the President at the Noosa Chamber of Commerce & Industry Inc (NCCI), while the Person Named is the Secretary.

[2] The application was allocated to me and it was evident that there was a jurisdictional issue regarding the Applicant and the Person Named being volunteers of the Respondent, a volunteer organisation. Following a preliminary telephone conference on 1 March 2021, I issued Directions requiring the filing and service of written submissions and evidence in relation to the jurisdictional issue.

[3] After the filing of material, I listed the matter for a Jurisdictional Hearing via Microsoft Teams on 27 May 2021. Following the conclusion of the Jurisdictional Hearing, the Applicant sent correspondence to my Chambers requesting the opportunity to file further evidence. I sought the views of the Person Named and granted the request. Both the Applicant and Person Named subsequently filed further written submissions following the Hearing on 27 May.

BACKGROUND

[4] The Chamber of Commerce is a not-for-profit organisation whose members are state and territory chambers of commerce and national industry associations. The Respondent is one of the many Chamber of Commerce locations within Australia.

[5] The committee at the NCCI is made up of volunteers, committed to advancing local businesses. Whether a volunteer organisation owes duties under the model Work Health and Safety (WHS) laws depends on whether it is a person conducting a business or undertaking (PCBU) that employs one or more persons to carry out paid work.

JURISDICTIONAL ISSUES

[6] To determine whether the matter is capable of proceeding to a determination of the substantive matter, the jurisdictional issue must first be determined. The jurisdictional issue in this matter is whether the NCCI is considered a wholly ‘voluntary association’ that does not employ anyone. If this is the case, then the NCCI is not classified as a PCBU and therefore the Commission will not have jurisdiction to deal with an anti-bullying claim.

LEGISLATION

[7] The concept of a PCBU is provided by section 5 of the Work Health and Safety Act 2011 (Qld) (WHS Act) in the following terms:

“(1) For 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 government does not in that capacity conduct a business or undertaking.

(6) A regulation 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.”

[emphasis added]

[8] Section 7 of the WHS Act defines who is a worker for the purposes of that Act. Section 7(1) provides:

“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.

[emphasis added]

[9] The Workplace Health and Safety Regulations 2011 also 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.”

SUBMISSIONS

Person Conducting Business

[10] A ‘volunteer’ comes under the definition of a worker as reflected in section 7 of the WHS Act. However, a key component of this is that they must be a volunteer within a PCBU.

[11] The Person Named submitted that the NCCI is by definition, a volunteer organisation, and therefore exempt from the Legislation. To the contrary, the Applicant submitted that the NCCI meets the definition of a person conducting business or undertaking (PCBU) under the Safework Australia WHS guidelines. He said that this is due to the term PCBU being an umbrella concept used to capture all types of working arrangements or structures.

[12] It was submitted by the Applicant that each PCBU must do what they reasonably can to ensure the health and safety of workers while at work for the PCBU and other people who might be at risk from work carried out by the PCBU. Further, the Applicant stated that under the Model WHS Laws, a worker includes a volunteer, and a volunteer is a person who works without payment or financial reward.

Payment to ‘employees’

[13] In determining whether the NCCI is a wholly voluntary association, it must be considered whether there is or has been any paid employees.

[14] The Person Named submitted that the entire committee of the NCCI were volunteers who receive no payment for service and are only recompensed for operational expenses. Any outside services that are required from time to time are provided by contractors.

[15] It was submitted by the Applicant that NCCI’s Constitution allows for the employment of staff and to also pay a fee for service to its Committee Members from time to time.

[16] A key consideration of this determination is whether NCCI has employees. The Person Named stated that no records could be found of this chamber ever paying PAYE Tax or Superannuation Contributions. He also submitted that for the purpose of discussion, this information was correct for Financial Years 2019-2020 and 2020-2021 and according to available records all prior periods.

[17] The Applicant stated that as the current President of NCCI, he allocated 20-25 hours work per week fulfilling his duties such are the demands of the President of a Chamber of Commerce in a Tourist region in the midst of a Global Pandemic. The Applicant also stated that the Person Named would carry out 5-10 hours of work per week pertaining to his position as Secretary.

[18] It was also stated by the Applicant that as the current President of the NCCI, he also uses his own staff as delegated to monitor and carry out work for the organisation as do several other members of the executive. He further submitted that the NCCI is a business group advocating on behalf of other businesses, it is not a collective of volunteers at or similar to a woodworking club or chess club, the executive and committee members represent (implicitly or otherwise) the 8000 registered businesses in the Noosa Region and their 22,000 staff on a daily basis to all levels of Government.

[19] The Person Named challenged this by stating that NCCI has 67 financial members and there are in excess of 8000 businesses in the Noosa Council Area, however, they only represent financial members and NCCI cannot claim to speak for the other 7933 businesses that are not members.

[20] Whilst not all businesses with an ABN in the Noosa region are members of NCCI, the Applicant said that they represent the good of all businesses by their professional lobbying not just the financial members.

[21] It was submitted by the Applicant that the NCCI has in the past, and will in the future, employ staff as funding permits. He provided that they have several grant applications in discussion to re employ a full-time staff member to take the load off the Executive members and their relative businesses and their staff.

[22] It was submitted that recently, the NCCI employed casual staff at their Business BBQ for Mental Health and employed staff for Business networking late last year. The Applicant said the NCCI was also provisionally awarded a Commonwealth Government Grant of $615,000 in late December that was to employ 2.5 full time employees, however, they did not take up the offer due to Executive differences that cost the businesses of Noosa region greatly. The Person Named also submitted that the Applicant had applied for the Government Grant without any consultation or approval from the committee, and therefore the committee did not accept it.

[23] In response to this, the Person Named emphasised that the NCCI does not have any employees, only volunteers.

[24] At the hearing, the Applicant confirmed that NCCI has no current employees however he stated there had been employees of NCCI in the past. He said that during his time on the committee, individuals had been employed and paid directly from NCCI, including employees engaged to walk the streets to get new members. The Applicant also gave evidence that some individuals had been employed in the past and paid in cash. When asked about this, he gave an example of a mental health event in November last year, and in the lead up he said that people were engaged to walk into businesses in Noosa and raise awareness of the event.

[25] The Applicant also made a comment that his position of President is ‘akin to work’.

[26] In response to these matters, the Person Named stated that the records showed people had only been engaged on a contractor basis, and no PAYE Tax had been paid, and therefore no individuals had been ‘employees’. He also stated that since his time with NCCI, no ‘cash’ had been paid to individuals, and this had been a historical concern.

Materials filed subsequent to the hearing

[27] Further to the jurisdictional hearing in this matter, the Applicant sought to file further materials. In further submissions, the Applicant maintained that NCCI had previously employed individuals, and he noted it has been the intent of the current committee and previous committees to find funding for secretariat services. The Applicant annexed various email correspondence, most of which related to grant applications, and did not specifically outline any ‘employees’ of NCCI.

[28] The Applicant annexed correspondence containing meeting minutes, which included a heading ‘funding’ with talking points being: “As agreed, we will proceed to get funding & support, initially the NSC $2,000 for a grant writer, then hopefully significant resources from 3 levels of govt and business, to allow NCCI to operate properly”. It did not otherwise speak to ‘employees’ of NCCI.

[29] The Applicant also annexed correspondence of 27 March 2020, which provided confirmation of an intern being taken on to assist with staffing phones and calling members. The Applicant submitted that this intern provided 80 hours of work, calling every one of NCCI’s past and present 800 members. He said that over the agreed 80 hour period, the intern filled a job that would normally have been filled by an Award Employee, which made her an ‘employee’ for the purposes of the Act.

[30] As to his own role as President of NCCI, the Applicant submitted that he is required to attend to the job of President at all times during the course of his daily work, which includes an expectation to attend numerous external monthly meetings with Noosa Council, CCIQ, SCCA, Tourism Noosa, among others. He said that these meetings are scheduled months in advance, and the ‘President’ is listed as a ‘required participant’. He therefore submitted his role has a ‘Regular Roster’, and he meets the bar of expectation as an employee as set out by the ‘FWA Guidelines’. The Applicant said the ‘FWA Guidelines’ go further, providing:

“For an employment contract to exist it must be clear that:

•  the parties intend to create a legally binding arrangement

•  there is a commitment to perform work for the benefit of the business or organisation

•  the person performing the work is to get something in return (which might be just experience or training)

•  the person must not be performing the work as part of a business of their own.”

[31] The Applicant stated that his role as President meets each of these criteria, and therefore, “along with material submitted in Bibawi v Stepping Stone”, NCCI meets the required Jurisdictional hurdles.

[32] The Applicant also cited the NCCI Constitution at clause 8.2, which provides:

“8.2 Clause 8.1 does not prevent:

(a) payment of remuneration to Members who in their capacity as officers, employees, contractors or suppliers of the Local Chamber have provided goods or services to the Local Chamber…”.

[33] In response the Named Person submitted that the Chamber is a voluntary organisation because all the members are volunteers, and this conflict is between two volunteers.

[34] The Named Person submitted that according to the NCCI constitution the Chamber does have the ability to employ people from time to time to get work done that is beyond a voluntary level, hence the need to apply for grants from various sources. It was submitted that in the instance of the current management committee they have not employed any PAYE employees but have paid contract prices for services rendered (entertainment at NCCI sponsored events). It was submitted that as the current committee has limited information regarding the previous committee’s the Person Named could not vouch for them, but in the financial records there is no indication of any PAYE employees.

[35] It was submitted that the grant applications the Applicant refers too (except one) are part of the past records that are not provided to the current board. It was submitted that it would appear the Applicant has been withholding records that were asked for but at the time he denied knowledge of, and it is part of the Constitution that outgoing Administrations hand over all records to incoming Administrations.

[36] It was submitted that none of the applications appear to have come to fruition. It was submitted that the only grant the Person Named could speak of was the Federal Grant for Cyber Security the Applicant applied for on the 8th December, and was supposedly given off the record advice of success and then expected the Committee to approve of urgently on 23rd of December without any detailed disclosure, consultation or approval of the grant with the Committee.

[37] It was submitted that on examination of the application it was found information put forward by the Applicant was false. It was submitted that the Applicant has had limited communication with the Committee since the last physical meeting on 4 March 21 and not called any monthly meetings. It was submitted that the Committee has been conducting business by email, as allowed in the constitution, to try and fulfil its obligations to the business community.

[38] It was submitted that because the previous two Administrations had not updated records or financial obligations to the OFT QLD for those two years, NCCI had to provide those details before it could update the current records. The name change to the Constitution came through in early March 2021 and was changed on the NCCI website immediately.

Is NCCI a PCBU?

[39] In the Application by Gaylene May McDonald, 1 Commissioner Hampton considered the circumstance where the Applicant is a worker within the meaning of the Act. He stated that:

“[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.

…

[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.”

[40] For the Commission to have jurisdiction, the Applicant would either need to be an employee or a volunteer who is not involved with a volunteer association. While the Applicant has made submissions that his position as President is ‘akin to work’ and meets the various criteria of an ‘employment contract’, given that the Applicant has indicated he is a volunteer, and it is plainly apparent there is no contract of employment, or employment relationship established between the Applicant and the NCCI, that submission fails.

[41] On the basis of that conclusion, the Applicant’s remaining argument is that the NCCI is not a wholly volunteer association. As previously noted, a key consideration is whether the NCCI employs anyone. The Applicant made submissions that there was an ‘intern’ engaged in March of 2020 for a period of 80 hours and this intern was an employee for the purposes of the Act.

[42] The Person Named has submitted that the NCCIhadno records of the chamber ever paying PAYE Tax for at least the last two years. The Applicant has not produced evidence that the person said to have been employed as an intern over one year ago was employed by the NCCI. On the basis of the submission of the Person Named who is the current Secretary that there is no record of PAYE Tax in the last two years I am not inclined to accept that the intern was an employee of NCCI.

[43] The Applicant has also submitted that employees of member organisations have been delegated work on occasion in the course of their employment with member organisations to perform work for the benefit of the NCCI.

[44] If such work is performed it is not being performed as an employee of the NCCI, but it seems is work being donated to the NCCI at the direction of the persons employer in their capacity as an employee of another organisation. The contribution of that time does not make those persons an employee of the NCCI, nor does it establish that they have been employed by another organisation for the purpose of carrying out work for the NCCI.

[45] The Applicant also put a submission to the effect that the given the nature of the purpose of the NCCI it is not a volunteer association. I am satisfied with reference to the definition of a volunteer association in section 5(8) of the WHS Act that the NCCI operates for one or more community purposes.

[46] The Applicant has also referred to the Full Bench decision in Bibawi v Stepping Stone Clubhouse 2however that matter is distinguishable in that it turned on whether the Applicant in that matter performed work, not whether the employer was a PCBU which was not in contest.

[47] I am satisfied that the NCCI is a wholly volunteer association within the definition of section 5(8) of the WHS Act and does not have any paid workers. As a result of this, the NCCI are excluded from being a PCBU under section 5 of the WHS Act.

Conclusion

[48] Having regard to all of the relevant circumstances of this matter, I find that the Applicant is not eligible to bring a s789FC application and therefore, the Commission has no jurisdiction.

[49] The application must be dismissed.

COMMISSIONER

Appearances:

Mr R. Neely appearing on his own behalf.
Mr G. Nichols appearing on his own behalf.

Hearing details:

2021,
Brisbane:
May 27

Printed by authority of the Commonwealth Government Printer

<PR730795>

 1  [2016] FWC 300

 2   [2019] FWCFB 1314.