The Broadening Scope of Anti-Bullying Laws

02 May 19

 THE BROADENING SCOPE OF ANTI-BULLYING LAWS

As you may be aware the Fair Work Commission (FWC) has in the recent past decided that the bullying of a building manager employee by members of an Owners Corporation can amount to bullying under the Fair Work Act 2009 (FW Act). If actions are found to be bullying under the FW Act this could lead to the Owners Corporation or even individual owners being liable to orders from the FWC and if such orders are breached it opens the door to civil and criminal penalties for the “bullies”.


What you may not be aware though is that in a very recent decision by the Full Bench of the FWC, Bibawi v Stepping Stone Clubhouse Inc [2019] FWCFB 1314 (Clubhouse Decision), it has been decided that the FW Act protections against bullying can also extend to volunteers who carry out tasks that may not traditionally be considered work, paid or otherwise. This is significant as it broadens the scope of who is considered a “worker” and able to seek anti-bullying orders available in the FW Act. Determining whether someone is or isn’t a worker under the FW Act is a matter of technical legal interpretation, but the pub test has been reasonably reliable to date in that if you are doing something that people wouldn’t usually get paid to do you weren’t considered a worker.


What does this mean for Owners Corporations?


In the vast majority of Owners Corporations the management of the scheme is carried out by a committee of unpaid volunteers. As determined by the FWC with respect to building managers, an Owners Corporation can be considered a business in the context of the FW Act. That decision brought Owners Corporations under the umbrella of the FW Act and opened the door for Owners Corporation workers (who weren’t employees of the Owners Corporation) to seek relief from the FWC. With the Clubhouse Decision it now appears that the tasks that committee members carry out could also be considered work for the Owners Corporation and therefore they could meet the definition of workers in the context of the FW Act.


In practical terms this means that a committee member may be able to seek relief from the FWC if they have suffered bullying associated with the work they perform for the Owners Corporation. Bullying that is most likely to be captured in this scenario would be bullying conducted by fellow committee members or bullying conducted by the building manager, but could also include bullying by owners who are not on the committee.


If a committee member were to seek anti-bullying orders from the FWC, such orders if granted would primarily be made against the Owners Corporation, as it is the Owners Corporation’s responsibility to provide its workers with a safe workplace. An Owners Corporation is obliged under occupational health and safety laws to take proactive action to prevent, monitor and manage bullying in the workplace. Creating a safe workplace is not just putting yellow paint on the edge of a step, but also includes creating safe communication channels that can prevent the opportunity for bullying to occur. The FWC has the ability to impose a broad range of remedies on the Owners Corporation and the specific facts of a given situation will significantly influence the types of orders that may be chosen.


The Clubhouse Decision should be a wake-up call for all Owners Corporations and anyone who deals with the members of an Owners Corporation committee. Owners Corporation members need to be aware of their obligations to provide a safe workplace, and those people dealing with Owners Corporation members should be aware that unacceptable behaviour may make themselves liable to civil and criminal penalties that were not previously considered available in these circumstances.


Liability limited by a scheme approved under Professional Standards Legislation
Disclaimer – This article is provided for information purposes only and should not be regarded as legal advice.

Additional Documents

Click here to download: 2019_05_May___Broadening_Scope_of_Anti_Bullying_Laws.pdf

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