Definition of ‘worker’

The Work Health and Safety Act 2011 (Cth) (WHS Act) states that a worker is a person who carries out work in any capacity for a person conducting a business or undertaking, including any of the following:[1]

• an employee[2]
• a contractor or subcontractor[3]
• an employee of a contractor or subcontractor[4]
• an employee of a labour hire company who has been assigned to work in the person’s business or undertaking
• an outworker[5]
• an apprentice or trainee
• a student gaining work experience
• a volunteer – except a person volunteering with a wholly ‘volunteer association’ with no employees (whether incorporated or not).[6]

Others are also deemed to be workers including Australian Federal Police members (including the Commissioner and Deputy Commissioner) and Commonwealth statutory office holders.[7]

If a person performs work, but does not do so for a person conducting a business or undertaking, the person is not a 'worker' for the purposes of the anti-bullying laws.

The Fair Work Commission has determined, for example, that a carer for a disabled person who is in receipt of a carer’s payment under the Social Security Act 1991 (Cth) is not a 'worker' because, even though the carer performs work, he or she does not do so for any business or undertaking. The Department of Human Services which pays the carer’s payment is not such a business or undertaking because the carer’s work is not performed for the Department.[8]

Recipient of carer’s payment – NOT found to be a worker

Balthazaar v Department of Human Services (Commonwealth)

[2014] FWC 2076 (Watson VP, 2 April 2014).

Facts
An application was made for an order against the Commonwealth Department of Human Services (Department) to stop bullying. The applicant received a carer’s payment and submitted that, because of those payments, he was an employee and/or outworker and/or volunteer who carried out work for the Department.

Outcome
The Commission found that a person in receipt of carer payments was not a person performing work of the Department and there was no sound basis to classify the relationship as 'employer and employee', 'principal and contractor' or a volunteer one. The applicant did not meet the definition of ‘worker’ in the Fair Work Act.

Relevance
In this matter the Commission found that whilst providing constant care constitutes ‘work’ in the broad sense, the question was whether the applicant carried out work for the Department. In receiving a carer payment under s.198 of the Social Security Act 1991 (Cth) (the SS Act), a carer is not carrying out work for the Department. The applicant’s work as a carer was carried out as part of his parental responsibilities for the benefit of his child. The Commission concluded that payments arising from the SS Act are properly viewed as social security payments pursuant to legislation aimed at assisting people in the applicant’s situation and the receivers of their care.

Whether a Chairperson of a Board is also a worker

Application by Trevor Yawiriki Adamson

[2017] FWC 1976 (Hampton C, 19 May 2017).

Facts
Mr Adamson was the Chairperson of the Executive Board of the Anangu Pitjantjatjara Yankunytjatjara Inc (APY Inc). He alleged that he experienced bullying behaviour from the General Manager of that organisation and the Deputy Chairperson of the Executive Board.

Outcome
The decision in this matter dealt with a number of jurisdiction issues. One of these was whether the applicant, Mr Adamson, was a ‘worker’ within the definition of the Work Health and Safety Act 2011 (Cth) (WHS Act). Notwithstanding that Mr Adamson may not have been in the role of Chairperson at the time of issuing the decision, the Commissioner found that he was a worker for the purposes of the WHS Act and therefore the purposes of the Fair Work Act.

Relevance
When determining if an applicant is a worker, it is necessary to examine if the applicant meets the definition of a worker for the purpose of the Fair Work Act and/or the WHS Act. In general terms the WHS Act provides that a worker is a person who carries out work in any capacity for a person conducting a business or undertaking. Of significance was that Mr Adamson as Chairperson had a specific role under the terms of the Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA) and was paid significant remuneration for doing so. This remuneration was well beyond the sitting fees for general members of the Executive Board and exceeded cost reimbursement. This fact, whilst not decisive, was more consistent with the notion that work is being undertaken.

Volunteer participant in Government funded program – Found to be a worker

Bibawi v Stepping Stone Clubhouse Inc t/a Stepping Stone & Others

[2019] FWCFB 1314 (Hatcher VP, Sams DP, Hampton C, 13 March 2019).

Decision at first instance [2018] FWC 7471 (Booth C, 14 December 2018).

Facts
Stepping Stone is a community organisation which provides services and support for people living with mental illness. It operates a ‘clubhouse’ in which persons suffering from mental illness may voluntarily participate in order to engage in social, working, educational and recreational activity as well as to access support services. Mr Bibawi has participated in a number of programs offered by Stepping Stone since he became a participant in 2012. Since 2012 he has participated in a program known as the ‘Work-ordered Day’.

As a result of his participation in the Work-ordered Day program, Mr Bibawi became eligible for a Mobility Allowance. This a benefit paid by Centrelink to assist persons with a disability, illness or injury to defray travel costs for work, study or looking for work. In order to become eligible, the person must undertake paid work, self-employment, voluntary work, vocational training, independent living or life skills training or any combination of these for at least 32 hours every four weeks on a continuing basis. Stepping Stone assisted Mr Bibawi to obtain the allowance in 2015.

Mr Bibawi made an application for an order to stop bullying against Stepping Stone alleging that a number of employees of the service had engaged in bullying behaviour such as continuous intimidation, aggressive behaviour, threatening and stalking.

Outcome
At first instance the Commission dismissed Mr Bibawi's application for an order to stop bullying. An application to stop bullying can only be made by a 'worker' defined in s.789FC of the Fair Work Act as having the same meaning as s.7 of the WHS Act. The Commission found that Mr Bibawi did not satisfy the definition and held no jurisdiction to determine application.

On appeal Mr Bibawi contended he undertook work 'in any capacity for' Stepping Stone consistent with the WHS Act definition. The Full Bench found Mr Bibawi satisfied the definition of ‘worker’ and was thus competent to make an application for an order to stop bullying under s.789FC. 

Relevance
The Full Bench Found that even though the work performed by Mr Bibawi was done as part of a program funded by the Government, there was nothing in s.7(1) of the WHS Act (or elsewhere) which would exclude Mr Bibawi from the definition for this reason. Likewise it may also be accepted that Mr Bibawi’s performance of the work was intended to improve his well-being and mental health, but the definition does not require that the requisite work be performed for any particular purpose and, in respect of volunteer and unpaid work in particular, there may be a wide range of motivations and objectives attaching to the performance of such work.

Officers and enlisted members in the Australian Defence Force (Army, Navy & RAAF)

See Fair Work Regulations 2009 (Cth) reg 6.08(2)

A member of the Defence Force is excluded from the definition of 'worker'.[9]

No civil contract of any kind is created with the Crown or the Commonwealth[10] as a result of:

• the appointment of an officer, or
• the enlistment of an enlisted member.

Declarations that anti-bullying provisions do not apply

See Fair Work Act ss.789FJ‒789FL

The following declarations may only be made with the approval of the Minister for Small and Family Business, the Workplace and Deregulation.[11]

Declarations by the Chief of the Defence Force

The Chief of the Defence Force[12] may, by legislative instrument, declare that all or specified provisions of the ‘Workers bullied at work’ provisions do not apply in relation to a specified activity.

Declarations by the Director‑General of Security

The Director-General of Security[13] may, by legislative instrument, declare that all or specified provisions of the ‘Workers bullied at work’ provisions do not apply in relation to a person carrying out work for them.

Declarations by the Director‑General of ASIS

The Director-General of the Australia Secret Intelligence Service[14] may, by legislative instrument, declare that all or specified provisions of the ‘Workers bullied at work’ provisions do not apply in relation to a person carrying out work for them.