A recent Fair Work Commission decision has considered the potential reach of the new anti-bullying laws, and found that despite the substantial breadth of the provisions, they do not apply to persons receiving social security payments administered by a government department.
In a creative argument based on the extended definition of "worker" under section 789FF of the Fair Work Act 2009 (Cth) (FW Act), the applicant, Mr Balthazaar submitted that because he received carer payments to assist him in caring for his daughter who suffers from a mental illness, he was an employee, outworker or volunteer for the Commonwealth Department of Human Services (the Department). In doing so, Mr Balthazaar referred to the payment eligibility criteria under the Social Security Act 1991 (SS Act), and government publications suggesting that social welfare compensates carers for services which would otherwise be a burden on the government.
The Department argued that while Mr Balthazaar met the relevant SS Act criteria to be eligible for an income support payment, the Department was not a beneficiary of the work he was performing, and therefore this necessary element of an employment relationship was missing in the circumstances.
Meaning of "worker" under section 789FF
Watson VP considered the meaning of "worker" under section 789FF of the FW Act, which refers to the definition contained 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 for a person conducting a business or undertaking...", and includes a non-exhaustive list of examples, such as work performed in the capacity of an employee, volunteer, contractor or outworker.
While it was clear that the Department conducted a business or undertaking, the threshold issue was whether Mr Balthazaar was a "worker" for the purposes of section 7(1) – that is, that he carried out "work", and the work was carried out for the Department.
No requisite connection between work performed and undertaking of the Department
Watson VP was satisfied that caring work constituted "work" within the broad terms of section 7(1). However, it did not follow that such work was performed for the Department, even though the performance of the caring work was a precondition to qualifying for the social security payments. The payment of the benefits arose out of meeting the SS Act criteria, rather than in relation to the Department's various statutory and administrative functions. To this end, Mr Balthazaar's caring work lacked the "requisite connection" to the "undertaking" of the Department. Therefore, Watson VP found that Mr Balthazaar was not a "worker" for the purposes of the anti-bullying provisions, and his application was dismissed.
Important take away: broad scope of the anti-bullying provisions
While Mr Balthazaar was unsuccessful, the decision serves as an important warning to employers about the broad potential application of the anti-bullying provisions. As considered by Watson VP in his reasoning, the reach of the provisions extends far beyond the types of employment relationships contemplated by the remainder of the FW Act. Further, the potential remedy under the provisions (being a compulsory order by the Fair Work Commission) "...is available with respect to bullying at work that may be engaged in by persons beyond the employer and its employees and independently of any formal relationship between the individuals concerned" [at 17]. Organisations should be aware of the variety of circumstances in which a bullying claim can arise and ensure that their internal policies and procedures are equipped to manage these risks effectively.
Arnold Balthazaar v Raelene McGuire; Department of Human Services (Commonwealth) [2014] FWC 2076
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