Employer argues worker performed 'contributions' rather than work
The Fair Work Commission (FWC) recently dealt with a case involving allegations of workplace bullying and a jurisdictional objection regarding the definition of a "worker" under the Work Health and Safety Act 2011 (Qld) (WHS Act).
The dispute centred around a member of a professional medical organisation who claimed to be a volunteer worker, while the organisation argued that committee membership did not constitute work.
This case highlights the complexities in defining worker status, particularly in volunteer and professional membership contexts.
Bullying allegations and jurisdictional challenge
The worker, a psychiatrist, applied for an order to stop bullying under section 789FC of the Fair Work Act 2009 (Cth). They alleged bullying behaviour by the employer, The Royal Australian and New Zealand College of Psychiatrists (RANZCP), and three named individuals who held various positions within the organisation, including the Chief Executive Officer, President, and Chair of the Membership Engagement Committee.
The application stemmed from an alleged breach of a Mediation Agreement that had finalised a previous Application to Stop Bullying in 2023.
The worker claimed that one of the named individuals had written to them, violating a condition of the agreement that stated:
"Upon fulfillment of the terms of this agreement, there will be no further communication in relation to past resolutions of the Board requiring production of vaccination certificates, and any other matters pertaining to the subject of the FWC application."
The employer raised a jurisdictional objection, contending that the worker did not meet the definition of a 'worker' under the WHS Act and was not at work when the alleged bullying occurred.
Worker’s arguments and role
The worker claimed to perform voluntary work on several committees within the organisation, including the Membership Engagement Committee (MEC), Committee for Educational Evaluation, Journals Committee, Member's Advisory Council, and as Chair of the Queensland Section of Rural Psychiatry.
To support their case, the worker cited various responsibilities:
"The work associated the MEC, the [worker] alleges that it includes both decision making/advisory function during the meetings, as well as preparation for the meetings including detailed reports for each item number and work performed in the subcommittees."
The worker emphasised that they attended two face-to-face meetings per year, approximately five online meetings, and contributed to multiple out-of-meeting processes. They also mentioned attending the organisation's annual congress in Canberra as a working member of the Journal Committee and the Member's Advisory Council.
Employer's position and structure
The employer, RANZCP, is a constitutional corporation and membership organisation responsible for training, education, and representing psychiatrists across Australia and New Zealand.
They submitted that they have over 8,400 members, including more than 5,900 qualified psychiatrists (Fellows) and over 24,000 members who are training to qualify as psychiatrists (Associate members or Trainees).
The employer contended that the worker's activities were "member-facing contributions" rather than work. They argued that the organisation's operational tasks were carried out by employed staff, not committee members. The employer's submission stated:
"The staff that they employ, undertake the operational tasks of, and progress the purpose of the College. They submitted that those employment relationships are defined by standardised employment agreements. In contrast, the [employer] submitted that the member facing contributions to them include participation on a Committee, and should not be deemed volunteer-based work, nor founded on an employment contract."
Commission's considerations
The FWC examined the definition of "worker" under the WHS Act, which is intentionally broad. The Commission noted that a person need only perform work "in any capacity for" the other person conducting the business or undertaking to satisfy the definition.
"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," the FWC cited.
The Commission found that while the employer argued committee members did not perform operational work, the responsibilities outlined in the committee regulations constituted work within the broad definition of the WHS Act.
These responsibilities included strategic oversight of membership engagement, providing strategic advice and leadership, improving member awareness, and overseeing operational membership processes.
Volunteer or employee?
The FWC ultimately dismissed the jurisdictional objection, ruling that the worker met the definition of a worker under the WHS Act while remaining a member of the organisation's committee. The Commission stated:
"On that basis I am satisfied that while the [worker] remains a member of a membership committee of the [employer], he is a worker for the purposes of the WHS Act."
This decision emphasises the broad interpretation of "worker" under the WHS Act, which can include volunteers and committee members in certain circumstances. The ruling highlights that:
"The definition of 'worker' in s 7(1) of the WHS Act is very broad in that, a person need only perform work 'in any capacity for' the other person conducting the business or undertaking in order to satisfy the definition."
This case serves as a reminder for organisations to carefully consider the status of their volunteers and committee members, as they may be classified as workers under workplace health and safety legislation.
The matter was set to proceed to consideration of its merits, underlining the importance of addressing bullying claims regardless of the complainant's employment status.
