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The right for OC caretakers to initiate
bullying claims confirmed by the Fair
Work Commission
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
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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 “constitutionallycovered 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
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(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 antibullying 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
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