1
Fair Work Act 2009
s.604 - Appeal of decisions
Bibawi
v
Stepping Stone Clubhouse Inc t/a Stepping Stone & Others
(C2018/7096)
VICE PRESIDENT HATCHER
DEPUTY PRESIDENT SAMS
COMMISSIONER HAMPTON SYDNEY, 13 MARCH 2019
Appeal against decision [2018] FWC 7471 of Commissioner Booth at Brisbane on 14
December 2018 in matter number AB2018/248.
Introduction and factual background
[1] Mr Magdy Bibawi has lodged an appeal, for which permission to appeal is required,
against a decision of Commissioner Booth issued on 14 December 20181 (Decision). The
Decision concerned an application made by Mr Bibawi on 30 April 2018 pursuant to s
789FC(1) of the Fair Work Act 2009 (FW Act) for an order to stop bullying against Stepping
Stone Clubhouse Inc (Stepping Stone) and some named individuals. Under s 789FC(1), such
an application may only be made by a “worker”, and Stepping Stone raised as a jurisdictional
objection to the application that Mr Bibawi was not a worker in relation to Stepping Stone.
The Commissioner dealt with this objection on a preliminary basis, and determined that Mr
Bibawi was not a worker for the purpose of s 789FC(1) and therefore “there is no jurisdiction
to determine this application”.2 The Commissioner separately issued an order dismissing the
application.3 Mr Bibawi contends in his notice of appeal that this conclusion was in error.
[2] Stepping Stone is a community organisation which provides services and support for
people living with mental illness. It operates a “clubhouse” in which persons suffering from
mental illness may voluntarily participate in order to engage in social, working, educational
and recreational activity as well as to access support services. Mr Bibawi, who suffers from
mental illness, has participated in a number of programs offered by Stepping Stone since he
became a participant in 2012. Relevantly he has at all material times since 2012 participated
in a program known as the “Work-ordered Day”. This program was described by Stepping
Stone in its submissions before the Commissioner in the following terms:
1 [2018] FWC 7471
2 Ibid at [40]
3 PR703268
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DECISION
E AUSTRALIA FairWork Commission
[2019] FWCFB 1314
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“Designed to include members in every aspect of the operation of Clubhouse programs.
In fact the program is intentionally understaffed so that it could not operate without
the assistance and involvement of the membership. Through participation in the work
units (Employment and Education, Clerical, Administration and Training; Reception
and Media and Hospitality) members engage in a range of useful activities that boost
self-esteem and help prepare for other employment or education activities within the
community.”
[3] The same submission described Mr Bibawi’s participation in the following terms:
“Magdy has participated in the Work-ordered Day, predominantly in the Employment,
Education, Clerical, Admin and Training (EECAT) Unit. The work that Magdy has
been involved in includes doing the petty cash, data input, tours and orientation of
new members. The Work-ordered Day is structured to provide meaningful activities
for members to work on to increase their confidence, self-esteem and as a form of
pyscho-social rehabilitation.”
[4] As a result of his participation in the Work-ordered Day program, Mr Bibawi became
eligible for a Mobility Allowance. This a benefit paid by Centrelink to assist persons with a
disability, illness or injury to defray travel costs for work, study or looking for work. In order
to become eligible, the person must undertake paid work, self-employment, voluntary work,
vocational training, independent living or life skills training or any combination of these for at
least 32 hours every four weeks on a continuing basis. Stepping Stone assisted Mr Bibawi to
obtain the allowance in 2015 by providing him with a letter (dated 14 March 2014 and signed
by the Assistant Director) which relevantly stated:
“Magdy Bibawi is a member of Stepping Stone Clubhouse. Stepping Stone Clubhouse
is a psycho-social rehabilitation program for adults who have a primary diagnosis of a
mental illness. Members of the program work side by side with staff and other
members to regain their confidence, stamina, concentration, social, and vocational
skills.
Magdy has been regularly volunteering at Stepping Stone Clubhouse and consistently
volunteers for at least 32 hours per month, on an average of 8 hours per week. He
volunteers in our Clerical, Administration and Technology unit, and assists with
database entry, newsletter submissions, outreach to members currently not attending,
and general clerical duties.
I would like to confirm his participation as a volunteer with our organization and
support his review for Mobility Allowance.”
[5] A later letter with the same purpose (dated 8 September 2016 and signed by the
Director) similarly stated:
“This letter is to verify that Magdy Bibawi does voluntary work for Stepping Stone
Clubhouse.
. . .
Magdy has been a volunteer at Stepping Stone Clubhouse since 01/02/2012. Magdy
participates in the work ordered day, undertaking voluntary work within the
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organisation. On average, Magdy spends at least 8 hours a week at our
organisation…”
[6] With the qualification that Stepping Stone would now prefer to characterise Mr
Bibawi as a “voluntary participant” rather than a “volunteer”, it accepted at the appeal that
the description in the above correspondence of Mr Bibawi’s role remained accurate.4
[7] It is not necessary for the purpose of this appeal to describe the allegations of bullying
made by Mr Bibawi in his application. It is sufficient to say that his application discloses that
he was banned or suspended from participation in Stepping Stone’s activities on 6 March
2018 for a period of one month. It appears that it was intended that he have a discussion about
his return with Stepping Stone’s management after the period of a month had expired, and
attempts were made on 18 and 19 April 2018 to facilitate this occurring. However following
this there was an incident which caused Mr Bibawi to believe that there was a risk to his
safety and health if he returned to Stepping Stone, and this apparently led to him filing his
application on 30 April 2018.
Statutory Framework
[8] Part 6-4B of the FW Act contains a statutory scheme concerned with stopping workers
from being bullied at work. Section 789FC of the FW Act prescribes who may make an
application for an order to stop bullying. It relevantly provides:
789FC Application for an FWC order to stop bullying
(1) A worker who reasonably believes that he or she has been bullied at work may
apply to the FWC for an order under section 789FF.
(2) For the purposes of this Part, worker has the same meaning as in the Work Health
and Safety Act 2011, but does not include a member of the Defence Force.
. . . .
[9] Section 7 of the Work Health and Safety Act 2011 (WHS Act) defines who is a worker
for the purposes of that Act. Section 7(1) provides:
Meaning of worker
(1) A person is a worker if the person carries out work in any capacity for a person
conducting a business or undertaking, including work as:
(a) an employee; or
(b) a contractor or subcontractor; or
(c) an employee of a contractor or subcontractor; or
4 It was not in dispute that Mr Bibawi also served on the Management Committee of Stepping Stone for a period from 2015
until his resignation on 20 August 2016, but that this was not relevant to whether he was a worker at the relevant time.
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(d) an employee of a labour hire company who has been assigned to work in
the person's business or undertaking; or
(e) an outworker; or
(f) an apprentice or trainee; or
(g) a student gaining work experience; or
(h) a volunteer; or
(i) a person of a prescribed class.
[10] The remaining subsections in s 7 define additional categories of persons as workers,
but they are not relevant to Mr Bibawi. The expression “person conducting a business or
undertaking” used in s 7(1) is defined in s 5 of the WHS Act. It was not in dispute that
Stepping Stone fell within this definition and thus was a person conducting a business or
undertaking for the purpose of s 7(1).5
[11] The term “volunteer” used in s 7(1)(h) is defined in s 4 of the WHS Act as “a person
who is acting on a voluntary basis (irrespective of whether the person receives out-of-pocket
expenses).”
The Decision
[12] After setting out in the Decision the background to the matter and the relevant
statutory provisions and making reference to the earlier Commission decision in Arnold
Balthazaar v Department of Human Services6 (Balthazaar), the Commissioner made a
number of relevant findings of fact as follows:
“[29] Stepping Stone’s website provides that membership to their Clubhouse is free.
. . .
[32] The Clubhouse International website provides under the heading “Must I work? If
so, do I get paid for it?” that,
“No members are required to work. However, most members help out sooner
or later because of all that has to be done to maintain the Clubhouse. Members
are not paid for the volunteer work they do at the Clubhouse, but any member
who wants or needs to have paid employment can find help gaining and
keeping a paid job through the Clubhouse’s employment programs”.
[33] The website provides additionally that “Membership and participation at the
Clubhouse is completely voluntary. Each individual decides how much and how often
they wish to be involved.”
5 Under s 5(7) of the WHS Act, a “volunteer association” does not conduct a business or undertaking for the purpose of the
WHS Act. The expression “volunteer association” is defined in s 5(8). It was not in dispute that Stepping Stone is not a
volunteer association because it employs a number of mental health support workers.
6 [2014] FWC 2076, 241 IR 390
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[34] The Stepping Stone Clubhouse Member’s Handbook provides relevantly that
“Members have the opportunity to participate in all the work of the Clubhouse,
including administration, research, enrolment and orientation, reach out, hiring,
training and evaluation of staff, public relations, advocacy and evaluation of
Clubhouse effectiveness”.
[35] These documents make it clear that there is no obligation on members to
participate in the activities on offer at Stepping Stone. The documents also clarify that
the activities to be performed by willing members contribute to the operational
running of the Stepping Stone Clubhouse. Members perform these activities, if they
have indicated they wish to do so, at the direction and under the supervision of the
Mental Health Worker employees at Stepping Stone.”
[13] The Commissioner then stated her conclusions as follows:
“[36] Mr Bibawi’s activities do contribute to the Stepping Stone Clubhouse. But is this
sufficient to establish that he was working as a volunteer?
[37] In my view, and as described in Balthazaar Mr Bibawi’s relationship with
Stepping Stone is a relationship outside the context of paid or unpaid work in the
commonly understood sense. His participation is part of a program and the activities
undertaken are opportunities and experiences given to the participants at Stepping
Stone.
[38] While the anti-bullying legislation is intended to cover a broad range of work
arrangements it is not unlimited. This important relationship between Mr Bibawi and
Stepping Stone is not ‘work’ of a paid or unpaid type such as would be done by a
volunteer, it is done as part of a program, funded by Government, to improve the well-
being and mental health of its participants such as Mr Bibawi.
[39] Therefore Mr Bibawi is not a person who carries out work in any capacity at
Stepping Stone as defined in s.7 of the WHS Act.”
[14] The Commissioner went on to note in paragraph [41] that she had not dealt with a
separate jurisdictional issue as to whether Stepping Stone was a “constitutionally-covered
business” such as to make Part 6-4B of the FW Act applicable to it, but did say that “there is a
real potential that there could also be a finding that Stepping Stone is not a constitutionally
covered business and for this reason also is outside the Commission’s jurisdictions or
powers.”
Appeal submissions
[15] Mr Bibawi’s submissions, as relevant to the issue in this appeal, were that the facts of
the matter demonstrated that he performed work for Stepping Stone on a voluntary basis, and
therefore he fell within the definition of “worker” in s 7(1) of the WHS Act because he carried
out work “in any capacity” and as “a volunteer”.
[16] Stepping Stone largely relied upon the submissions it had made before the
Commissioner. Its written submissions at first instance described in detail the nature of its
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operations and activities and the extent of Mr Bibawi’s participation, and contended as
follows:
“In summary, Magdy voluntarily participates in the services provided by Stepping
Stone. He is a participant of the psychosocial rehabilitation services that are provided.
Magdy chooses the services that he wishes to participate in. Magdy was not a
Management Committee member during the time of perceived incidences. Members
are covered by Public Liability Insurance, not Work Cover or Volunteers Insurance.
Therefore Magdy does not meet the definition of a Worker under the Fair Work Act
2009.”
Consideration
[17] Section 587(1)(a) of the FW Act empowers the Commission to dismiss an application
where it has not been made in accordance with this Act, and s 587(1)(c) similarly empowers
dismissal where an application has no reasonable prospects of success. This power may be
exercised summarily - that is, an application may be dismissed pursuant to s 587(1) prior to a
full hearing being conducted. Full Bench decisions such as Townsley v State of Victoria
(Department of Education & Early Childhood Development)7 and Toma v Workforce
Variable Pty Ltd8 have emphasised that the power to dismiss applications summarily should
be exercised cautiously and sparingly, consistent with the principle stated by Barwick CJ in
General Steel Industries Inc v Commissioner for Railways (NSW):
“… the jurisdiction summarily to terminate an action is to be sparingly employed and is
not to be used except in a clear case where the Court is satisfied that it has the
requisite material and the necessary assistance from the parties to reach a definite and
certain conclusion… the plaintiff ought not to be denied access to the customary
tribunal which deals with actions of the kind he brings, unless his lack of a cause of
action … is clearly demonstrated.”9
[18] The definition of “worker” in s 7(1) of the WHS Act is very broad, in that as a person
need only perform work “in any capacity for” the other person conducting the business or
undertaking in order to satisfy the definition. The definition was expressly described as
“broad” in the Explanatory Memorandum to the Fair Work Bill 2013 which added Pt 6-4B to
the FW Act. The types of workers listed in paragraphs (a)-(i) of s 7(1) are taken to be included
in the general definition in the chapeau to the provision, but do not operate to limit it. As to
the interpretation and application of s 7(1), we agree with and adopt the following analysis of
the provision in the decision of Vice President Watson in Balthazaar:10
“[19] 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. There follows words of
inclusion to emphasise that the work carried out for a person conducting a business or
undertaking can be in any capacity whatsoever. The capacities extend beyond that of
an employee. It can extend to persons performing work as an independent contractor
7 [2013] FWCFB 5834 at [17]-[19]
8 [2018] FWCFB 5811 at [15]
9 [1964] HCA 69, 112 CLR 125 at 128-129
10 [2014] FWC 2076
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under a contract for services. Indeed it is not necessary that there be any contract or
any payment for the work. Volunteer work is included within the definition (subject to
the exclusion of volunteers working together in a volunteer association: WH and S
Act s.5).”
[19] In our view, the factual material presently before the Commission indicates that, in
respect of Mr Bibawi, this definition is satisfied consistent with the above analysis. It is clear
that he performed work, including “database entry, newsletter submissions, outreach to
members currently not attending, and general clerical duties”. The Commissioner’s own
finding, set out above, was that he handled petty cash, data input, tours of the Clubhouse and
orientation for new members.11 It is equally clear that he performed this work for Stepping
Stone. The Work-ordered day program, as Stepping Stone’s own submissions state, is
“intentionally understaffed so that it could not operate without the assistance and involvement
of the membership”, and the website extract quoted in paragraph [32] of the Decision states
that “…most members help out sooner or later because of all that has to be done to maintain
the Clubhouse”. The work is performed “side by side with staff”. The Commissioner’s finding
in paragraph [36] of the Decision that Mr Bibawi’s activities did contribute to the Stepping
Stone clubhouse was both obviously correct and demonstrative of the proposition that Mr
Bibawi performed work that Stepping Stone needed to be done and was plainly of value to its
operations.
[20] The matters relied upon by the Commissioner to conclude that Mr Bibawi was not a
worker within the meaning of s 7(1) of the WHS Act appear to us to be entirely extraneous to
the statutory definition. That the work performed by Mr Bibawi was done as part of a program
funded by the Government may factually be correct, but there is nothing in s 7(1) (or
elsewhere) which would exclude Mr Bibawi from the definition for this reason. Likewise it
may factually be accepted that Mr Bibawi’s performance of the work was intended to improve
his well-being and mental health, but the definition does not require that the requisite work be
performed for any particular purpose and, in respect of volunteer and unpaid work in
particular, there may be a wide range of motivations and objectives attaching to the
performance of such work. For example, a work experience student may perform work in a
business or organisation for the purpose of satisfying a school curriculum requirement and
gaining experience of a working environment, but the existence of that particular purpose
would not operate to exclude the student from the “worker” definition in s 7(1). Insofar as the
Commissioner regarded Mr Bibawi’s relationship with Stepping Stone as “outside the context
of paid or unpaid work in the commonly understood sense”, it is not entirely apparent to us
what was the common understanding being referred to or what it was about the relationship
that the Commissioner considered took it outside the statutory definition. To the extent that
the Commissioner may have regarded Mr Bibawi as having been in some sense a “client” of
Stepping Stone, that does not alter that the fact that he performed work for Stepping Stone as
a volunteer.
[21] The factual material currently before the Commission indicates that Mr Bibawi was a
worker with respect to Stepping Stone within the definition in s 7(1) of the WHS Act and thus
competent to make an application under s 789FC(1). It certainly does not permit a “definite
and certain conclusion” that he was not a worker such as to render his application liable to
summary dismissal. The Commissioner’s conclusion to the contrary constituted appealable
error. We consider that permission to appeal should be granted because the error was
11 Decision at [18]
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jurisdictional in nature and unfairly deprived Mr Bibawi of the opportunity to further
prosecute his application. The appeal will be upheld, the decision quashed, and the matter
remitted a single member of the Commissioner for further consideration. We consider that it
should be remitted to a member of the Commission other than the Commissioner in order to
avoid any difficulty that might arise from the Commissioner’s expression of a tentative view
concerning whether Stepping Stone is a “constitutionally covered business”. We also consider
that the appropriate procedural course may now be to conduct a final hearing on all issues in
relation to the matter.
Order
[22] We order as follows:
(1) Permission to appeal is granted.
(2) The appeal is upheld.
(3) The Decision ([2018] FWC 7471) is quashed.
(4) The matter (AB2018/248) is remitted to Commissioner Spencer for further
consideration and determination.
VICE PRESIDENT
Appearances:
M Bibawi on his own behalf.
M Sennett on behalf of Stepping Stone Clubhouse.
Hearing details:
2019.
Sydney:
18 February.
Printed by authority of the Commonwealth Government Printer
PR705388
OF THE FAIR WORK MISSION THE
