back to news

The right for OC caretakers to initiate bullying claims confirmed by the Fair Work Commission

Newsflash 20 January 2016

The Fair Work Commission (Commission) has recently confirmed that a resident caretaker of luxury resort “Xanadu” is a “worker” able to lodge an anti-bullying claim. The application was permitted to continue despite the caretaker being engaged as a director and employee of his own company XMR Holdings t/a Xanadu Resort (XMR), which had contracted with the two owners corporations associated with Xanadu (Bodies Corporate) to provide caretaking services.

Background

The five alleged bullies – all residents or owners of the properties within the Xanadu Resort, some of whom were committee members – were said to have used “threatening, intimidating and derogatory language”, shouting and abusive language, and threats of (as well as actual) violence against the caretaker. While various counter allegations were made by the alleged bullies regarding the caretaker’s behaviour, these substantive issues were left to be determined at a later stage (pending the outcome of the jurisdictional objections to the application).

The caretaker faced two key challenges to the application proceeding. The Bodies Corporate and alleged bullies argued that the caretaker was not a “worker” within the meaning of section 789C of the Fair Work Act 2009 (FW Act), and he was not “at work” in a “constitutionally-covered business” (as required by section 789FD). The Commissioner also made comments regarding the relevance of the structure of the arrangement in terms of the Bodies Corporate and alleged bullies’ inclusion as respondents to the application.

Was the caretaker a “worker”?

A “worker” for the purposes of the FW Act’s anti-bullying regime is a person who carries out work in any capacity for “a person conducting a business or undertaking”, including employees, contractors or subcontractors, employees of contractors or subcontractors, employees of labour hire companies, outworkers, apprentices, volunteers, and students gaining work experience. Commissioner Hampton confirmed that the definition of “worker” is also affected by the Workplace Health and Safety Regulations 2011 (WHS Regulations), and corresponding workplace health and safety laws (including Queensland’s Workplace Health and Safety Act 1995 (Qld)).

As XMR employed workers in addition to the caretaker, and was not otherwise excluded by a section in the WHS Regulations relating to strata title bodies, the Commissioner considered that it could be classified as a legal “person” conducting a business.

Was the caretaker “at work” in a “constitutionally-covered business”?

Confirming the accepted position of the Commission, Commissioner Hampton noted that it is not merely the location of the work performed by an applicant that is relevant in whether they are “at work”; rather, “[t]he phrase has temporal connotations, and applies equally to all kinds of work … [including] entering, moving about and leaving a workplace.” On that basis, he considered it likely that the caretaker was “at work” when the conduct occurred.

In considering the second aspect of the test (whether or not the work was in a “constitutionally-covered business”), the Commissioner applied the High Court’s “activities test” to find that XMR was a “trading corporation” (being one form of “constitutionally-covered business”) as an incorporated entity involved in providing commercial services. He noted that it was not possible on the material (and in any event, unnecessary because XMR met the relevant standard) to determine whether the Bodies Corporate was a “constitutionally-covered business”.

Inclusion of the bullies and bodies corporate as parties

Despite the lack of a contractual connection with the caretaker, the Commissioner commented that the Bodies Corporate and alleged bullies were correctly included as respondents to the application because the scope of a bullying claim depends on behaviour of “individuals or groups of individuals” while an applicant is at work, and “[t]hese bodies do however have some responsibilities for the operations of the Xanadu Resort and the resort is the location where the workplace is to be found.” The Commissioner noted that: “I appreciate that there may be very limited capacity for the Bodies Corporate to control or manage the conduct of the residents and this is likely to be relevant as to the form and nature of any orders that might be ultimately considered in that regard. However, this does not mean that the Bodies Corporate are improperly identified as parties to the proceedings at least at this stage.”

Civil liability of the committee members

While he declined to draw any conclusions on the issue pending a substantive hearing, the Commissioner noted that section 101A of the Body Corporate and Community Management Act 1997 (Qld) (the Queensland equivalent to section 118 of the Owners Corporation Act 2006 (Vic), which excludes committee members from civil liability for their acts or omissions in good faith and without negligence in performing their duties) may apply, depending on its interaction with relevant sections of the FW Act.
What does this case mean for your owners corporation?

This decision confirms that an owners corporation (OC) and individual residents or owners may be named as respondents to a bullying application, and that the individuals an OC engages (whether directly or indirectly) to perform services such as caretaking may be “workers” eligible to lodge anti-bullying claims. The exposure of the OC industry to bullying claims by OC managers has significant implications for the OC industry, The management of residential facilities, and the high degree of interaction with residents that this necessarily involves, is in our experience fertile ground for instances of “workplace” bullying. Body Corporates, committee members and even residents can now be subject to such claims.

It is also noteworthy that, while the Commissioner did not go so far as to say that it is necessary to name Bodies Corporate as respondents to bullying claims in OC contexts, his emphasis on the parties’ proper inclusion as parties and references to them being “relevant to this application” suggest this to be the case. The findings of the Commission at the hearing of this matter may provide further insight into this question and others regarding the scope of bullying applications in the OC context.

Manderson [2015] FWC 8231

Should you require any advice regarding the handling of bullying and other disputes involving OCs, please contact our Employment, IR & Workplace Safety Partner, Peta Tumpey or our Building & Construction Partner, Andrew Whitelaw.


Peta Tumpey, Partner
Sydney

Andrew Whitelaw, Partner
Melbourne

Newsflash 20 January 2016
back to news