Contains issues that may form the basis of a jurisdictional issue
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:
a contractor or subcontractor
an employee of a contractor or subcontractor
an employee of a labour hire company who has been assigned to work in the person’s business or undertaking
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).
A person is also a ‘worker’ if they are a member of the Australian Federal Police (including the Commissioner and Deputy Commissioner) or a Commonwealth statutory office holder.
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 laws to stop workplace sexual harassment.
The following case examples are drawn from the Commission’s stop bullying case law. The definition of ‘worker’ in s.789FC(2) of the Fair Work Act applies to applications for orders to stop sexual harassment or bullying (or both).
Summary of case examples
Examples of someone who is a Worker*
Examples of someone who is NOT a Worker*
Chairperson of statutory corporation
Carer – recipient of social security payments
Participant in a governmentfunded work program
Member of the Australian Defence Force
*Each case depends on its own facts and circumstances. Outcomes for similar work may be different because of the context in which the work is performed.
Case example: Recipient of carer’s payment – NOT a worker
Balthazaar v Department of Human Services (Commonwealth)  FWC 2076 (Watson VP, 2 April 2014).
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.
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 one involving a volunteer. The applicant did not meet the definition of ‘worker’ in the Fair Work Act.
The Commission found that, while 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 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 social security payments aimed at assisting people in the applicant’s situation and the receivers of their care.
Chairperson of Board of statutory corporation - a worker
Application by Trevor Yawiriki Adamson  FWC 1976 (Hampton C, 19 May 2017).
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 and the Deputy Chairperson of the Executive Board.
The Commissioner found that Mr Adamson as Chairperson had a specific role under the Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA) and was paid significant remuneration for this work. This remuneration was well beyond the sitting fees for general members of the Executive Board and exceeded cost reimbursement. This fact, while not decisive, was more consistent with the notion that work was being undertaken. The Commissioner found that Mr Adamson was a worker for the purposes of the WHS Act and the Fair Work Act.
When determining whether 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. In this matter, the Commissioner found that the Mr Adamson’s activities in attending to his duties as Chairperson amounted to the carrying out of work for APY Inc.
Volunteer participant in government-funded program – 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  FWC 7471 (Booth C, 14 December 2018).
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 participated in a number of programs offered by Stepping Stone since he became a participant in 2012. From 2012 he 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 is 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 4 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.
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 that it had no jurisdiction to determine the application. It was not in dispute that Stepping Stone is not a volunteer association as it employs a number of mental health support workers.
On appeal Mr Bibawi argued 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 could make an application for an order to stop bullying under s.789FC.
The Full Bench found that even though the work performed by Mr Bibawi was done as part of a program funded by the Government, s.7(1) of the WHS Act did not exclude Mr Bibawi from the definition of ‘worker’ for this reason. Mr Bibawi’s performance of the work was intended to improve his well-being and mental health, but that did not mean it was not work. The definition does not require that work be performed for a particular purpose and, in respect of volunteer and unpaid work in particular, there may be a wide range of motivations and objectives for the work being done.
Officers and enlisted members of the Australian Defence Force (Army, Navy & RAAF)
See Fair Work Regulations 2009 (Cth) reg 6.08(2)
A member of the Australian Defence Force (ADF) is excluded from the definition of ‘worker’.
No civil contract of any kind is created with the Crown or the Commonwealthas a result of:
the appointment of an officer, or
the enlistment of a member of the ADF.
Declarations that laws dealing with orders to stop sexual harassment do not apply
See Fair Work Act ss.789FJ‒789FL
The following declarations may only be made with the approval of the Commonwealth Minister:
Declarations by the Chief of the Defence Force
The Chief of the Defence Force may, by legislative instrument, declare that all or some provisions of the ‘Workers bullied or sexually harassed at work’ provisions do not apply in relation to a specified activity.
Declarations by the DirectorGeneral of Security
The Director-General of Security may, by legislative instrument, declare that all or some provisions of the ‘Workers bullied or sexually harassed at work’ provisions do not apply in relation to a person carrying out work for the Director-General.
Declarations by the DirectorGeneral of ASIS
The Director-General of the Australia Secret Intelligence Service may, by legislative instrument, declare that all or some provisions of the ‘Workers bullied or sexually harassed at work’ provisions do not apply in relation to a person carrying out work for the Director-General.
 WHS Act s.7(1).
 For a discussion on the difference between employees and contractors, see Hollis v Vabu Pty Ltd  HCA 44 (9 August 2001) at paras. 39‒58, [(2001) 207 CLR 21]; Abdalla v Viewdaze Pty Ltd t/a Malta Travel PR927971 (AIRCFB, Lawler VP, Hamilton DP, Bacon C, 14 May 2003) at para. 34, [(2003) 122 IR 215]. See also On Call Interpreters and Translators Agency Pty Ltd v Federal Commissioner of Taxation (No. 3)  FCA 366 (13 April 2011) at paras 188‒220, [(2011) 206 IR 252]; Fair Work Ombudsman v Metro Northern Enterprise Pty Ltd  FCCA 216 (7 May 2013) at paras 13‒25; Eastern Van Services Pty Limited v Victorian WorkCover Authority  VSCA 154, (2020) 296 IR; Dental Corp Pty Limited v Moffet  FCAFC 118, (2020) 297 IR 183 per Perram, Wigney and Anderson JJ (special leave refused:  HCATrans 16);
Jamsek v ZG Operations Australia Pty Limited  FCAFC 119, [ 297 IR 210] (special leave granted:  HCATrans 27,  HCATrans 139); CFMMEU v Personnel Contracting Pty Limited  FCAFC 122 per Allsop CJ and Jagot JJ (special leave granted:  HCATrans 30,  HCATrans 138); Howard v Merdaval Pty Limited  FCA 43 per O’Callaghan J.
 Fair Work Act s.12.
 WHS Act ss.5(7) and 5(8); see also Workplace Health and Safety Regulations 2011 (Cth), reg 7(3). For a discussion on the definition of worker regarding volunteers, see Bibawi v Stepping Stone Clubhouse Inc t/a Stepping Stone & Others [2019 FWCFB 1314 (Hatcher VP, Sams DP, Hampton C, 13 March 2019) at paras 17–21. For factual circumstances involving volunteers from the stop bullying case law, see Re Cowie  FWC 7886 (Hampton C, 21 November 2016) at paras. 1, 8 and 9; Ryan v RSL Queensland  FWC 761 (Asbury DP, 6 February 2018) at para. 6; Re Legge  FWC 5874 (Hampton C, 4 September 2019); Collins v Team Rubicon Australia  FWC 2412 (Clancy DP, 7 May 2020) at para. 13.
 WHS Act s.7(2).
 Fair Work Act s.789FC(2).
 Defence (Personnel) Regulations 2002 (Cth) reg 117.
 Fair Work Act ss.789FJ‒789FL.
 See Defence Act 1903 (Cth) s.9.
 See Australian Security Intelligence Organisation Act 1979 (Cth) s.7.
 See Intelligence Services Act 2001 (Cth) s.17.
 LexisNexis Australia, Encyclopaedic Australian Legal Dictionary (online at 21 July 2021) ‘legal person’ (def).