DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Bibawi
v
Stepping Stone Clubhouse Inc t/a Stepping Stone & Others
(C2018/7096)

Appeal against decision [2018] FWC 7471 of Commissioner Booth at Brisbane on 14 December 2018 in matter number AB2018/248.

Introduction and factual background

[1] Mr Magdy Bibawi has lodged an appeal, for which permission to appeal is required, against a decision of Commissioner Booth issued on 14 December 2018 1 (Decision). The Decision concerned an application made by Mr Bibawi on 30 April 2018 pursuant to s 789FC(1) of the Fair Work Act 2009 (FW Act) for an order to stop bullying against Stepping Stone Clubhouse Inc (Stepping Stone) and some named individuals. Under s 789FC(1), such an application may only be made by a “worker”, and Stepping Stone raised as a jurisdictional objection to the application that Mr Bibawi was not a worker in relation to Stepping Stone. The Commissioner dealt with this objection on a preliminary basis, and determined that Mr Bibawi was not a worker for the purpose of s 789FC(1) and therefore “there is no jurisdiction to determine this application”.2 The Commissioner separately issued an order dismissing the application.3 Mr Bibawi contends in his notice of appeal that this conclusion was in error.

[2] 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, who suffers from mental illness, has participated in a number of programs offered by Stepping Stone since he became a participant in 2012. Relevantly he has at all material times since 2012 participated in a program known as the “Work-ordered Day”. This program was described by Stepping Stone in its submissions before the Commissioner in the following terms:

“Designed to include members in every aspect of the operation of Clubhouse programs. In fact the program is intentionally understaffed so that it could not operate without the assistance and involvement of the membership. Through participation in the work units (Employment and Education, Clerical, Administration and Training; Reception and Media and Hospitality) members engage in a range of useful activities that boost self-esteem and help prepare for other employment or education activities within the community.”

[3] The same submission described Mr Bibawi’s participation in the following terms:

“Magdy has participated in the Work-ordered Day, predominantly in the Employment, Education, Clerical, Admin and Training (EECAT) Unit. The work that Magdy has been involved in includes doing the petty cash, data input, tours and orientation of new members. The Work-ordered Day is structured to provide meaningful activities for members to work on to increase their confidence, self-esteem and as a form of pyscho-social rehabilitation.”

[4] 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 by providing him with a letter (dated 14 March 2014 and signed by the Assistant Director) which relevantly stated:

“Magdy Bibawi is a member of Stepping Stone Clubhouse. Stepping Stone Clubhouse is a psycho-social rehabilitation program for adults who have a primary diagnosis of a mental illness. Members of the program work side by side with staff and other members to regain their confidence, stamina, concentration, social, and vocational skills.

Magdy has been regularly volunteering at Stepping Stone Clubhouse and consistently volunteers for at least 32 hours per month, on an average of 8 hours per week. He volunteers in our Clerical, Administration and Technology unit, and assists with database entry, newsletter submissions, outreach to members currently not attending, and general clerical duties.

I would like to confirm his participation as a volunteer with our organization and support his review for Mobility Allowance.”

[5] A later letter with the same purpose (dated 8 September 2016 and signed by the Director) similarly stated:

“This letter is to verify that Magdy Bibawi does voluntary work for Stepping Stone Clubhouse.

. . .

Magdy has been a volunteer at Stepping Stone Clubhouse since 01/02/2012. Magdy participates in the work ordered day, undertaking voluntary work within the organisation. On average, Magdy spends at least 8 hours a week at our organisation…”

[6] With the qualification that Stepping Stone would now prefer to characterise Mr Bibawi as a “voluntary participant” rather than a “volunteer”, it accepted at the appeal that the description in the above correspondence of Mr Bibawi’s role remained accurate. 4

[7] It is not necessary for the purpose of this appeal to describe the allegations of bullying made by Mr Bibawi in his application. It is sufficient to say that his application discloses that he was banned or suspended from participation in Stepping Stone’s activities on 6 March 2018 for a period of one month. It appears that it was intended that he have a discussion about his return with Stepping Stone’s management after the period of a month had expired, and attempts were made on 18 and 19 April 2018 to facilitate this occurring. However following this there was an incident which caused Mr Bibawi to believe that there was a risk to his safety and health if he returned to Stepping Stone, and this apparently led to him filing his application on 30 April 2018.

Statutory Framework

[8] Part 6-4B of the FW Act contains a statutory scheme concerned with stopping workers from being bullied at work. Section 789FC of the FW Act prescribes who may make an application for an order to stop bullying. It relevantly provides:

789FC Application for an FWC order to stop bullying

(1)  A worker who reasonably believes that he or she has been bullied at work may apply to the FWC for an order under section 789FF.

(2)  For the purposes of this Part, worker has the same meaning as in the Work Health and Safety Act 2011, but does not include a member of the Defence Force.

. . . .

[9] Section 7 of the Work Health and Safety Act 2011 (WHS Act) defines who is a worker for the purposes of that Act. Section 7(1) provides:

Meaning of worker

(1)  A person is a worker if the person carries out work in any capacity for a person conducting a business or undertaking, including work as:

(a)  an employee; or

(b)  a contractor or subcontractor; or

(c)  an employee of a contractor or subcontractor; or

(d)  an employee of a labour hire company who has been assigned to work in the person's business or undertaking; or

(e)  an outworker; or

(f)  an apprentice or trainee; or

(g)  a student gaining work experience; or

(h)  a volunteer; or

(i)  a person of a prescribed class.

[10] The remaining subsections in s 7 define additional categories of persons as workers, but they are not relevant to Mr Bibawi. The expression “person conducting a business or undertaking” used in s 7(1) is defined in s 5 of the WHS Act. It was not in dispute that Stepping Stone fell within this definition and thus was a person conducting a business or undertaking for the purpose of s 7(1). 5

[11] The term “volunteer” used in s 7(1)(h) is defined in s 4 of the WHS Act as “a person who is acting on a voluntary basis (irrespective of whether the person receives out-of-pocket expenses).”

The Decision

[12] After setting out in the Decision the background to the matter and the relevant statutory provisions and making reference to the earlier Commission decision in Arnold Balthazaar v Department of Human Services 6 (Balthazaar), the Commissioner made a number of relevant findings of fact as follows:

“[29] Stepping Stone’s website provides that membership to their Clubhouse is free.

. . .

[32] The Clubhouse International website provides under the heading “Must I work? If so, do I get paid for it?” that,

“No members are required to work. However, most members help out sooner or later because of all that has to be done to maintain the Clubhouse. Members are not paid for the volunteer work they do at the Clubhouse, but any member who wants or needs to have paid employment can find help gaining and keeping a paid job through the Clubhouse’s employment programs”.

[33] The website provides additionally that “Membership and participation at the Clubhouse is completely voluntary. Each individual decides how much and how often they wish to be involved.”

[34] The Stepping Stone Clubhouse Member’s Handbook provides relevantly that “Members have the opportunity to participate in all the work of the Clubhouse, including administration, research, enrolment and orientation, reach out, hiring, training and evaluation of staff, public relations, advocacy and evaluation of Clubhouse effectiveness”.

[35] These documents make it clear that there is no obligation on members to participate in the activities on offer at Stepping Stone. The documents also clarify that the activities to be performed by willing members contribute to the operational running of the Stepping Stone Clubhouse. Members perform these activities, if they have indicated they wish to do so, at the direction and under the supervision of the Mental Health Worker employees at Stepping Stone.”

[13] The Commissioner then stated her conclusions as follows:

“[36] Mr Bibawi’s activities do contribute to the Stepping Stone Clubhouse. But is this sufficient to establish that he was working as a volunteer?

[37] In my view, and as described in Balthazaar Mr Bibawi’s relationship with Stepping Stone is a relationship outside the context of paid or unpaid work in the commonly understood sense. His participation is part of a program and the activities undertaken are opportunities and experiences given to the participants at Stepping Stone.

[38] While the anti-bullying legislation is intended to cover a broad range of work arrangements it is not unlimited. This important relationship between Mr Bibawi and Stepping Stone is not ‘work’ of a paid or unpaid type such as would be done by a volunteer, it is done as part of a program, funded by Government, to improve the well-being and mental health of its participants such as Mr Bibawi.

[39] Therefore Mr Bibawi is not a person who carries out work in any capacity at Stepping Stone as defined in s.7 of the WHS Act.”

[14] The Commissioner went on to note in paragraph [41] that she had not dealt with a separate jurisdictional issue as to whether Stepping Stone was a “constitutionally-covered business” such as to make Part 6-4B of the FW Act applicable to it, but did say that “there is a real potential that there could also be a finding that Stepping Stone is not a constitutionally covered business and for this reason also is outside the Commission’s jurisdictions or powers.”

Appeal submissions

[15] Mr Bibawi’s submissions, as relevant to the issue in this appeal, were that the facts of the matter demonstrated that he performed work for Stepping Stone on a voluntary basis, and therefore he fell within the definition of “worker” in s 7(1) of the WHS Act because he carried out work “in any capacity” and as “a volunteer”.

[16] Stepping Stone largely relied upon the submissions it had made before the Commissioner. Its written submissions at first instance described in detail the nature of its operations and activities and the extent of Mr Bibawi’s participation, and contended as follows:

“In summary, Magdy voluntarily participates in the services provided by Stepping Stone. He is a participant of the psychosocial rehabilitation services that are provided. Magdy chooses the services that he wishes to participate in. Magdy was not a Management Committee member during the time of perceived incidences. Members are covered by Public Liability Insurance, not Work Cover or Volunteers Insurance. Therefore Magdy does not meet the definition of a Worker under the Fair Work Act 2009.”

Consideration

[17] Section 587(1)(a) of the FW Act empowers the Commission to dismiss an application where it has not been made in accordance with this Act, and s 587(1)(c) similarly empowers dismissal where an application has no reasonable prospects of success. This power may be exercised summarily - that is, an application may be dismissed pursuant to s 587(1) prior to a full hearing being conducted. Full Bench decisions such as Townsley v State of Victoria (Department of Education & Early Childhood Development) 7 and Toma v Workforce Variable Pty Ltd8 have emphasised that the power to dismiss applications summarily should be exercised cautiously and sparingly, consistent with the principle stated by Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW):

“… the jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion… the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action … is clearly demonstrated.” 9

[18] The definition of “worker” in s 7(1) of the WHS Act is very broad, in that as a person need only perform work “in any capacity for” the other person conducting the business or undertaking in order to satisfy the definition. The definition was expressly described as “broad” in the Explanatory Memorandum to the Fair Work Bill 2013 which added Pt 6-4B to the FW Act. The types of workers listed in paragraphs (a)-(i) of s 7(1) are taken to be included in the general definition in the chapeau to the provision, but do not operate to limit it. As to the interpretation and application of s 7(1), we agree with and adopt the following analysis of the provision in the decision of Vice President Watson in Balthazaar: 10

“[19] The definition of “worker” in s.7(1) of the WH and S Act contains two primary elements. First, the person must carry out work. Secondly, the work must be carried out for a person conducting a business or undertaking. There follows words of inclusion to emphasise that the work carried out for a person conducting a business or undertaking can be in any capacity whatsoever. The capacities extend beyond that of an employee. It can extend to persons performing work as an independent contractor under a contract for services. Indeed it is not necessary that there be any contract or any payment for the work. Volunteer work is included within the definition (subject to the exclusion of volunteers working together in a volunteer association: WH and S Act s.5).”

[19] In our view, the factual material presently before the Commission indicates that, in respect of Mr Bibawi, this definition is satisfied consistent with the above analysis. It is clear that he performed work, including “database entry, newsletter submissions, outreach to members currently not attending, and general clerical duties”. The Commissioner’s own finding, set out above, was that he handled petty cash, data input, tours of the Clubhouse and orientation for new members. 11 It is equally clear that he performed this work for Stepping Stone. The Work-ordered day program, as Stepping Stone’s own submissions state, is “intentionally understaffed so that it could not operate without the assistance and involvement of the membership”, and the website extract quoted in paragraph [32] of the Decision states that “…most members help out sooner or later because of all that has to be done to maintain the Clubhouse”. The work is performed “side by side with staff”. The Commissioner’s finding in paragraph [36] of the Decision that Mr Bibawi’s activities did contribute to the Stepping Stone clubhouse was both obviously correct and demonstrative of the proposition that Mr Bibawi performed work that Stepping Stone needed to be done and was plainly of value to its operations.

[20] The matters relied upon by the Commissioner to conclude that Mr Bibawi was not a worker within the meaning of s 7(1) of the WHS Act appear to us to be entirely extraneous to the statutory definition. That the work performed by Mr Bibawi was done as part of a program funded by the Government may factually be correct, but there is nothing in s 7(1) (or elsewhere) which would exclude Mr Bibawi from the definition for this reason. Likewise it may factually 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. For example, a work experience student may perform work in a business or organisation for the purpose of satisfying a school curriculum requirement and gaining experience of a working environment, but the existence of that particular purpose would not operate to exclude the student from the “worker” definition in s 7(1). Insofar as the Commissioner regarded Mr Bibawi’s relationship with Stepping Stone as “outside the context of paid or unpaid work in the commonly understood sense”, it is not entirely apparent to us what was the common understanding being referred to or what it was about the relationship that the Commissioner considered took it outside the statutory definition. To the extent that the Commissioner may have regarded Mr Bibawi as having been in some sense a “client” of Stepping Stone, that does not alter that the fact that he performed work for Stepping Stone as a volunteer.

[21] The factual material currently before the Commission indicates that Mr Bibawi was a worker with respect to Stepping Stone within the definition in s 7(1) of the WHS Act and thus competent to make an application under s 789FC(1). It certainly does not permit a “definite and certain conclusion” that he was not a worker such as to render his application liable to summary dismissal. The Commissioner’s conclusion to the contrary constituted appealable error. We consider that permission to appeal should be granted because the error was jurisdictional in nature and unfairly deprived Mr Bibawi of the opportunity to further prosecute his application. The appeal will be upheld, the decision quashed, and the matter remitted a single member of the Commissioner for further consideration. We consider that it should be remitted to a member of the Commission other than the Commissioner in order to avoid any difficulty that might arise from the Commissioner’s expression of a tentative view concerning whether Stepping Stone is a “constitutionally covered business”. We also consider that the appropriate procedural course may now be to conduct a final hearing on all issues in relation to the matter.

Order

[22] We order as follows:

(1) Permission to appeal is granted.

(2) The appeal is upheld.

(3) The Decision ([2018] FWC 7471) is quashed.

(4) The matter (AB2018/248) is remitted to Commissioner Spencer for further consideration and determination.

VICE PRESIDENT

Appearances:

M Bibawi on his own behalf.

M Sennett on behalf of Stepping Stone Clubhouse.

Hearing details:

2019.

Sydney:

18 February.

Printed by authority of the Commonwealth Government Printer

<PR705388>

 1   [2018] FWC 7471

 2   Ibid at [40]

 3   PR703268

 4   It was not in dispute that Mr Bibawi also served on the Management Committee of Stepping Stone for a period from 2015 until his resignation on 20 August 2016, but that this was not relevant to whether he was a worker at the relevant time.

 5   Under s 5(7) of the WHS Act, a “volunteer association” does not conduct a business or undertaking for the purpose of the WHS Act. The expression “volunteer association” is defined in s 5(8). It was not in dispute that Stepping Stone is not a volunteer association because it employs a number of mental health support workers.

 6   [2014] FWC 2076, 241 IR 390

 7   [2013] FWCFB 5834 at [17]-[19]

 8   [2018] FWCFB 5811 at [15]

 9   [1964] HCA 69, 112 CLR 125 at 128-129

 10   [2014] FWC 2076

 11   Decision at [18]