Bullying: Gaylene May McDonald [2016] FWC 300

The Fair Work Commission has found that a volunteer and artist who assisted in a small community based not for profit art gallery is unable to bring a bullying application against the gallery after it was found that she was not a “worker”.

Mrs McDonald was a local artist and member of the Cooktown School of Art Society Inc (CSAS), a small community based not for profit association, made up of individual member artists. CSAS conducts a gallery which displays and sells original art works from local artists in the Cooktown area. Members pay an annual subscription of $20.00 and in exchange, receive discounts on the commissions that are due to CSAS when their art is sold.

Mrs McDonald was a member and volunteer of CSAS and claimed in an application to the Fair Work Commission that she had been subject to bullying behaviour which had occurred for the past five years, culminating with her exclusion from the art gallery and the Society.

In response to Mrs McDonald’s application, CSAS raised a number of jurisdictional objections which, if proven, would result in the Fair Work Commission being unable to hear Mrs McDonald’s complaint. These were:

  1. Mrs McDonald was not a “worker” for the purposes of section 789FC of the Fair Work Act 2009 (Cth) and was therefore not eligible to make a bullying application;
  2. CSAS is not a constitutionally covered business and therefore, any worker being employed by them is not afforded protection from the anti-bullying jurisdiction in the Fair Work Commission;
  3. There was no further risk of Mrs McDonald being subject to bullying behaviour as she had been removed from the art gallery and the Society.

Decision

The Fair Work Commission found that in order for it to be able to hear Mrs McDonald’s complaint, she would have had to be either an employee or a volunteer who is not involved with a volunteer association. A volunteer association is classified as one that does not have any employees.

Mrs McDonald attempted to claim that because she received a benefit in the form of reduced commission payments, she could therefore be classified as an employee.

The Fair Work Commission found that a volunteer may receive out of pocket expenses or other benefits such as reduced meal costs or assisted transport and would still be considered to be a volunteer.

It was therefore found that Mrs McDonald was a volunteer and not a “worker”. As a result, the Fair Work Commission were unable to hear her bullying complaint. It was found that as it had been determined that the complaint could not be heard, the Commission was not required to determine the other jurisdictional objections relating to whether CSAS was a constitutionally covered business and whether there was a future risk of bullying towards Mrs McDonald, both of which had the very real potential to also lead to a finding that Mrs McDonalds application was outside of the Commission’s jurisdiction or powers.

 

Read the full decision here

 

* PCC Lawyers are a team of employment practitioners based in Sydney, with many years of combined knowledge and experience in workplace law, industrial relations, workplace investigations and training.  They provide a high standard of excellence and an exceptional level of personal service to a variety of clients in the Sydney metropolitan area, Central Coast, regional NSW and interstate.