Mahoneys regularly field enquiries from caretakers complaining (often quite validly) that they have been bullied, harassed or threatened by committee members or lot owners. Until now, there have only been limited options available to respond to such behaviour.
Mahoneys is presently acting for a caretaker in proceedings before the Fair Work Commission for stop bullying orders.
The caretaker is a director and shareholder of the company that owns the management rights business. Importantly, he is also an employee of the company.
The caretaker applied for a stop bullying order under s 789FC of the Fair Work Act 2009 (Cth) (FW Act) against a number of lot owners or residents, some of whom were also committee members. The complex has more than one body corporate. Because the committee members were (allegedly) acting in an official capacity on behalf of a number of the bodies corporate, the bodies corporate themselves are also respondents to the application.
The general nature of the alleged bullying was:
- threatening, intimidating and derogatory language;
- shouting and otherwise abusive language;
- threats of violence and other physical actions including allegedly grabbing or snatching at the caretaker’s mobile phone.
The respondents sought to strike out the application on jurisdictional grounds. The argument was that the caretaker was not entitled to the protections given to workers under the FW Act.
At the jurisdictional hearing, the Commissioner considered the following questions:
- Was the caretaker a ‘worker’ within the meaning of the FW Act?
- Did the relevant ‘workplace(s)’ where the alleged conduct took place involve a constitutionally-covered business as defined by the FW Act and did the alleged conduct take place whilst the applicant was at work in such a business?
- Were the bodies corporate and/or all or some of the individuals named properly cited as parties to this application?
1. Was the caretaker a worker within the meaning of the FW Act?
A worker for the purposes of the stop bullying protections takes its meaning from the workplace health and safety legislation. It is an extremely broad definition and captures employees, contractors, subcontractors, apprentices, students gaining work experience and volunteers. The critical requirement is that the person carries out work for a person in control of a business or undertaking (PCBU – another WHS term).
The management rights company was a PCBU.
The Fair Work Commission found that it necessarily followed that the caretaker was a worker, because he carried out work for the management rights company.
2. Was the workplace a constitutionally-covered business?
Under the FW Act, it is a requirement that the alleged bullying take place in a constitutionally covered business. The relevant business was that of the management rights company.
Constitutionally covered businesses include constitutional corporations (eg a proprietary company limited by shares (Pty Ltd) incorporated under the Corporations Act).
Again, this requirement was satisfied because the management rights company was a constitutionally covered business.
3. Were the respondents properly named?
This issue focused on whether or not the individual lot owners, particularly those who were not committee members, could be subject to stop bullying proceedings because they lacked any contractual relationship with the caretaker.
The caretaker was employed by a company. That company had a contract with the bodies corporate. The respondents included people whose only link were that they were lot owners in a body corporate. Could they be caught by the anti-bullying law?
The answer is found in s 789FD of the FW Act. That section says that the anti-bullying law also applies to individuals and groups of individuals.
It is not necessary for the respondents to be a co-worker, supervisor, employer or head contractor.
The application to strike out the application on jurisdictional grounds failed. The proceeding is ongoing.
What does this mean for caretakers?
The decision confirms that bodies corporate, committee members and individual lot owners can be included as respondents to a stop bullying order, even if that worker is not themselves employed by a body corporate and/or has no contractual relationship with the parties accused of bullying conduct.
We expect in the future to see other caretakers making similar applications where they are subjected to repeated harassment, vilification or other bullying conduct from committee members or other lot owners.
Caretakers, especially the “mum and dad” style company, will first need to ensure that they are a “worker” by being employed by their company (as many directors are). In this case, it was not necessary to decide if a person who was just a director or shareholder would be a “worker.” It would appear unlikely but we must wait for a subsequent case to confirm that.
Similarly, it was not necessary to decide if a self-employed sole trader would be entitled to the protections. While the definition of “worker” would not capture a self-employed sole trader in respect of their own business, they might be a “worker” if the body corporate is a PCBU. The answer to that question will depend on the particular circumstances of the body corporate It is likely that bodies corporate for holiday and short term letting schemes will be a PCBU and possibly those for large residential schemes.
Caretakers should contact John Mahoney or Ben Seccombe if they would like to know anything more about this ground-breaking development, especially if you think you may have been bullied and would like to know if you can do anything about it through the Fair Work Commission.