The Anti-Bullying clause (s. 789FC) of the Fair Work Act covers employees, contractors, outworkers, apprentices, work experience students and volunteers. The expansive definition of “worker” means that organisations need to consider their responsibility for the broader network of those who carry out work on their behalf. However, there are limits to the definition and the FWC has recently clarified these.
In Arnold Balthazaar v Department of Human Services (Commonwealth) (AB2014/1061), Mr Balthazaar sought an anti-bullying order against CentreLink following a dispute relating to his carers payment (a social security payment). In response to jurisdictional objections, Mr Balthazaar argued that he was a worker on the basis he was being remunerated for work (caring for his daughter) that would otherwise be provided by the State. While the FWC agreed that he did conduct work, it rejected the notion that such work was done for the Department. In summarising, Vice President Watson stated that ‘while obviously intended to cover a broad range of work arrangements, the provisions are not unlimited. In my view they are clearly not intended to cover relationships such as students performing work for teachers, domestic work by family members or relationships outside the context of paid or unpaid work in the commonly understood sense.’
This case provides clarity and confidence for organisations by rejecting artificial notions of what it means to be a worker. However, it is also an important reminder that the anti-bullying provisions do apply to anyone doing work for an organisation including unpaid activities through work experience and volunteering. Organisations should ensure that all workers, in the broad sense of the meaning, are appropriately inducted, trained and monitored to ensure that they do not become the perpetrators or victims of workplace bullying.
PEEL HR is inviting managers and HR practitioners to a free breakfast briefing in Melbourne on the topic of preventing workplace bullying through collaboration. Join us from 7:45am on Wednesday 30 April. Details HERE. Register now!
Jeremiah Byrnes is PEEL HR’s newest consultant. He is based in Melbourne and is dedicated to supporting Victorian organisations in their efforts to build strong, collaborative and sustainable working environments. You can contact Jeremiah on 0481 518 705.