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A recent Fair Work Commission (FWC) decision has found that a Barnardos foster carer can be held to be a ‘worker’ under the Fair Work Act (Act). As a result of the judgement, the carer is able to submit an application under the Act for a stop order - an order from the FWC to the employer to stop bullying.
In his stop-bullying application the carer made claims that his managers at Barnardos had subjected him to workplace bullying.
The defining issue of the case was whether the carer works for the charity or the Authority of the Director-General under the Children and Young People Act 20018 (ACT). Fair Work Commissioner Peter Hampton accepted the application that the carer was a worker within the meaning of the Fair Work Act s789FC(2).
Despite conceding that the carer is neither a Barnardos employee, subcontractor or outworker, the Commissioner concluded that given the charity’s status as a ‘person conducting a business or undertaking’ (PCBU) the carer was ‘performing work in any capacity’ and hence a worker. Hampton commented on the issue stating that there was, “no contest that [the carer] performs work in his capacity as a foster carer”.
Hampton elaborated, “the category of workers in s.7(1) of the WHS Act includes that of a volunteer, and in any event, is not an exhaustive list and the elements involved; being the performance of work and that the work is done for the PCBU, are the two operative considerations in this matter.”
Concluding the case he said, “[the carer] is a worker within the meaning of s7(1) of the WHS Act and as a result, is a worker for the purposes of s789FC(s) of the FW Act”.
It must be noted that the Commissioner emphasised that each case must be considered on a case by case basis. He said, “the statutory, contractual and practical circumstances of this case have been important and each case must be considered in its own jurisdictional context." The Commissioner went a step further concluding that, "The finding that [the carer] is a worker for present purposes should not be confused with a finding that he is employed by Barnardos Australia or is anything other than a volunteer worker.”
After concluding that the carer is held to be a worker, the Commissioner referred the matter to a locally-based member of the Commission to consider the merits of the substantive application.
With the jurisdiction of the FWC expanding, it is important to keep you and your business safe from claims of workplace bullying. Here is a list you can implement to ensure your workplace helps stay free from bullying:
- Create a company-wide anti-bully and anti-harassment policy. Ensure employees sign and understand their responsibilities under this policy;
- Train managers on how to recognise and appropriately deal with bullying;
- Familiarise yourself with the FWC Anti-Bullying Policy Guide;
If you need guidance on whether this new judgement may affect your business, feel free to contact our Workplace Law team.
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