Does the Fair Work Commission have jurisdiction over your volunteers?

Organisations engaging volunteers need to be mindful that the Fair Work Act 2009 (Cth) (FWA) has some application to their volunteer workforce.

This was highlighted in a recent Fair Work Commission decision in the matter of Anthony Walsh [2024] FWC 1514 (Walsh).

The Walsh decision

Mr Walsh was a volunteer for an incorporated association. The association had no employees but did have volunteers and contractors who carried out the association’s work.

Mr Walsh made an application to the Fair Work Commission (FWC) for an order to stop bullying.

Whilst most provisions of the Fair Work Act apply to employees and, in limited cases, to contractors, orders to stop bullying are available to “workers” as defined for the purposes of the FWA. The FWA definition relies on the definition of a “worker” under the Work Health and Safety Act 2011 (WHS Act).

Under the WHS Act, a person is a “worker” if they carry out work in any capacity for a person conducting a business or undertaking (PCBU), including work as an employee, a contractor and a volunteer.

In determining if it had jurisdiction to determine the matter, the FWC had to decide whether the volunteer was a “worker”. This required the FWC to determine whether the organisation Mr Walsh volunteered for was, in fact, a PCBU.  Relevantly, the WHS Act excludes from the definition of a PCBU a “volunteer association”^[1], being:

“a group of volunteers working together for 1 or more community purposes where none of the volunteers, whether alone or jointly with any other volunteers, employs any person to carry out work for the volunteer association“.^[2] (Emphasis added)

The FWC found that as the organisation did not employ anyone, it was not a PCBU and, therefore, Mr Walsh was not a “worker” for the purposes of the FWA. Accordingly, the FWC dismissed Mr Walsh’s application for an order to stop bullying.

Notwithstanding that Mr Walsh’s application was dismissed, this case serves as a timely reminder that the FWA has some application to volunteers.

A warning for “volunteer associations”

One of the key aspects of the finding in the Walsh case that the organisation was not a PCBU was the finding that it did not employ anyone. We note that the organisation did, however, engage contractors.  With the introduction of the new definition of an “employee”^[3] into the FWA on and from 26 August 2024, one has to consider whether this case would have been decided differently had it been heard after that time.

This new definition means a return to the pre-Personnel Contracting and Jamsek^[4] position where the multi-factoral common law test is again relevant for determining if someone is a contractor or an employee. In the Walsh case, this would open up the question as to whether the contractors of the association were, in fact, employees under the new definition.  It may have been that the FWC would have considered that the real substance, practical reality and true nature of those relationships meant that those contractors were employees for the purposes of the FWA.  If at least one of the contractors was found to be an employee, the organisation would have been a PCBU.  If that were the case, this matter would not have been dismissed on this basis and the FWC would have been able to hear and determine Mr Walsh’s application for an order to stop bullying, notwithstanding that he was a volunteer.

This means that any association which engages contractors and which relies on the definition of “volunteer association” as excluding them from being a PCBU under the WHS Act must reconsider that position and the impact the new definition of an “employee” may have on their future liabilities, policies, processes and engagement practices.

Observations and key take-aways

The FWC has (at least some) jurisdiction over any national system entity (including associations) which qualify as PCBUs under the WHS Act. This generally requires an association to employ at least 1 person.

“Employ” in this context, does not include the engagement of volunteers or contractors.

Where the association has at least 1 employee, all “workers” of that association, including volunteers (and contractors), are eligible to make application to the FWC for an order to stop bullying.

Such volunteers and contractors may also be able to seek an order to stop sexual harassment under the FWA.

Organisations who engage volunteers should ensure that their relevant policies and procedures, particularly those relating to rights and obligations in relation to sexual harassment and bullying, extend to volunteers of the organisation.

All employers who engage contractors should reassess their contracting arrangements prior to 26 August 2024 to ensure that their contractors do not meet the new definition of an “employee” under the FWA.

[1] s 5(7) Work Health and Safety Act 2011.

[2] s 5(8) Work Health and Safety Act 2011.

[3] The new definition will focus on the real substance, practical reality and true nature of the working relationship.

[4] CFMMEU v Personnel Contracting Pty Ltd [2022] HCA 1 and ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2.