Most Read Contributor in Australia, September 2016
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
Important take away: broad scope of the anti-bullying
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)  FWC 2076
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