It’s old news that volunteers are afforded many of the same ‘rights’ as workers, particularly with respect to health and safety. Expanding on this, the Fair Work Commission has determined that it has jurisdiction to deal with an application by a volunteer to stop bullying in the workplace.

There is a legal distinction between a person who is employed or contracted to perform work for financial reward and volunteers, who give their time willingly for the common good and without financial gain. However, volunteers still have standing to bring certain applications against the organisation for which they perform work.

The Fair Work Act 2009 (Cth) gives the Commission the power to issue orders to prevent ‘workers’ from being bullied in the workplace. This can include orders requiring an individual or group of individuals to stop the bullying behaviour, as well as orders relating to the conduct of the employer. In this context, the term ‘worker’ has the same meaning as in the Work Health and Safety Act 2011. Broadly, a worker is an individual who performs work in any capacity, including as an employee, a contractor, a subcontractor, an outworker, an apprentice, a trainee, a student gaining work experience or a volunteer.

Under this provision, a volunteer providing foster care in connection with Barnardos Australia has applied to the Commission seeking a stop-bullying order. The volunteer alleges he has been subjected to workplace bullying by managers at Barnardos Australia, which the charity denies.

Barnados Australia brought a jurisdictional challenge on the basis that the volunteer was not performing work for the charity. Rather, it was argued that the volunteer was performing work as a foster carer under the authority of the Director-General who was exercising the power conferred on the Director-General under section 518(2) of the Children and Young Persons Act 2008 (ACT).

In September, Commissioner Hampton determined the jurisdictional issue in favour of the volunteer. Commissioner Hampton determined that the volunteer was performing work in his capacity as a volunteer for Barnardos Australia. Accordingly, he is considered a ‘worker’ for the purposes of the Act and is eligible to bring the application.

Importantly, Commissioner Hampton noted in this jurisdictional decision:

“The statutory, contractual and practical circumstances of this case have been important and each case must be considered in its own jurisdictional context. The finding that Mr Legge 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. I have also not determined whether there is any merit to the substantive application and consideration of that awaits the Commission.”

In short, watch this space.

Workdynamic Australia has significant experience in assisting not for profit organisations meet their obligations and entitlements in relation to both paid workers and volunteers. In this regard, establishing best practice policies, training and systems to support all workers is a proven risk mitigation strategy.

The information in this article is for information purposes only and does not constitute legal advice. You should obtain specific advice relevant to your circumstances.