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• An Employee or Volunteer – the Broad Scope of “Workers” under the Fair Work Act

An Employee or Volunteer – the Broad Scope of “Workers” under the Fair Work Act

For the purposes of bullying claims under the Fair Work Act 2009 (Cth) (FW Act), the recent Fair Work Commission (FWC) decision in Dr Andrew Amos [2024] FWC 2081 confirms that the broad scope of the definition of “worker” may include a member of an association. This decision has significant implications for organisations that rely on the contributions of volunteers, especially in professional and membership-based organisations.

Background:

The application, made under the FW Act, sought an order to stop bullying. Dr. Andrew Amos, the applicant, had been performing voluntary work for the Royal Australian and New Zealand College of Psychiatrists (RANZCP), the respondent in this matter. Dr Amos alleged that the Chief Executive Officer, the President, and the Chair of the Membership Engagement Committee (MEC) engaged in bullying behaviour.

The Fair Work Commission was tasked with determining the critical issue of whether Dr. Amos was a ‘worker’ as defined by the Work Health and Safety Act 2011 (Qld) (WHS Act).

The Arguments:

Dr. Amos presented evidence of his extensive voluntary work with RANZCP, including participation in multiple committees such as the Membership Engagement Committee (MEC), the Committee for Educational Evaluation, Monitoring and Reporting, and others. His contributions involved attending face-to-face meetings, participating in online meetings, and engaging in out-of-meeting processes, all of which indicated an ongoing and significant commitment. Moreover, Dr Amos noted that one of the respondents had allegedly breached a 2023 Mediation Agreement to stop bullying.

RANZCP countered by arguing that Dr. Amos's activities were conducted as a member of the organisation rather than as an employee or volunteer worker. They emphasised that the tasks performed by Dr. Amos did not constitute an employment relationship, which is typically governed by employment agreements. They distinguished members (including those on committees) from staff on the basis that they do not engage in the daily operations of the College and hence their contributions should not be classified as volunteer-based work.

In its judgment, the Fair Work Commission confirmed that the WHS Act is intended to allow a broad interpretation of the term "worker" under section 7(1). The definition includes individuals performing work in any capacity, whether or not there is a formal contract or payment and extends to volunteer work, provided the volunteers are not part of a “volunteer association”.

The Commission further confirmed that the role and nature of the work carried out by Dr. Amos in the MEC was classified as “work”. The MEC's responsibilities, which include providing strategic oversight, advice, and leadership on membership engagement, were deemed to fall within the broad definition of "work" under the WHS Act.

Outcome:

The Fair Work Commission concluded that while Dr. Amos remains a member of a MEC committee of the RANZCP, he is considered a worker for the purposes of the WHS Act.

Implications:

This decision highlights the importance of understanding the legal status of volunteers within membership organisations. Associations must be mindful that members who participate in committees or other structured roles may be recognised as workers under the FW Act and various State/Territory work health and safety laws. Consequently, such organisations should ensure that they comply with their obligations under these laws, including those related to workplace safety, bullying and harassment.

Associations Forum can help your association with training committee members and reviewing your Committee’s Terms of Reference.

If you need any further assistance or have any questions about this article, please reach out to: info@governology.org 

NOTE:  This matter of Dr Andrew Amos [2024] FWC 2081 was solely to determine whether Mr Amos was an eligible Applicant under the WHS Act. The validity of the alleged claims are to be determined in further proceedings regarding the merits of the bullying claim.

By Raniya Dass, Governology