As the nation endures a frightful summer, again and again we see images and stories of volunteers putting their communities ahead of their own interests (and in some cases losing their own homes and properties or being injured and tragically killed).
These examples demonstrate clearly and unequivocally the important role that volunteers play on the fabric of Australian society. They embody Volunteering Australia’s definition of volunteering as “time willingly given for the common good and without financial gain”
Recently we were asked what rights and protections do volunteers have compared to employees, particularly in relation to allegations of bullying?- Can volunteers access the Fair Work Commission for stop bullying action?
Like many legal questions, the answer is – “it depends”. Recent cases have confirmed that volunteers can be deemed workers for the purposes of Stop Bullying action.
But surely that is not the right question to be asking if complaints are being made about the treatment of volunteers.
From our perspective, a volunteer’s experience of an organisation is equally as important as that of a paid worker. If the volunteers are complaining about unfair or unreasonable treatment, the chances are that there are cultural issues that an employer would be unwise to ignore.
But let’s start with the legal question:
Are volunteers covered by the Fair Work Act in relation to workplace bullying?
A number of cases over the last few years have demonstrated that volunteers can be considered workers for the purposes of Stop Bullying orders.
A recent appeal (Bibawi v Stepping Stone Clubhouse Inc t/a Stepping Stone & Others), showed that a person who was both a client and a volunteer with a service, was ultimately considered a worker. The appeal judge overturned the original finding, that Mr Bibawi was not a worker. The original finding, that he was not a worker, was made in part because he benefitted from the service he participated in as a volunteer.
Initially the Commission dismissed Mr Bibawi’s application for an order to stop bullying. The Commission found that Mr Bibawi did not satisfy the definition of a worker and held no jurisdiction to determine application.
On appeal Mr Bibawi contended he undertook work in any capacity for’ Stepping Stone consistent with the WHS Act definition. The Full Bench found Mr Bibawi satisfied the definition of ‘worker’ and was thus competent to make an application for an order to stop bullying under s.789FC.
The Full Bench Found that even though the work performed by Mr Bibawi was done as part of a program funded by the Government, there was nothing in s.7(1) of the WHS Act (or elsewhere) which would exclude Mr Bibawi from the definition for this reason. Likewise it may also 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.
Complaints as symptom of cultural problems that need to be addressed
Regardless of whether your volunteers meet the definition of a worker under the FWC, complaints from volunteers about poor treatment while volunteering are a clear symptom of a cultural issue and an organisational risk that needs to be addressed.
Ignoring the problem or dismissing the complaint because it is being experienced by volunteers rather than staff will not make it go away – and in fact this neglect can then breed a toxic culture that no-one wants to work in (in either a paid or unpaid capacity).
Best practice for managing volunteers
The National Standards for Volunteer Involvement (2015) provide clear guidance on effective volunteer management.
Standard 6 outlines best practice in volunteer workplace safety and wellbeing – the health, safety and wellbeing of volunteers is protected in the workplace when:
- Effective working relationships with employees, and between volunteers, are facilitated by the organisation
- Processes are in place to protect the health and safety of volunteers in their capacity as volunteers
- Volunteers have access to complaints and grievance procedures.
Standard 8 outlines best practice in respect of quality management and continuous improvement – effective volunteer involvement results from systems of good practice, review and continuous improvement where:
- Policies and procedures are implemented to effectively guide all aspects of volunteer involvement
- Volunteer involvement is regularly reviewed in line with the organisation’s evaluation and quality management frameworks
- The organisation’s performance with volunteer involvement is monitored and reported to the governing body, employees, volunteers and stakeholders
- Opportunities are available for volunteers to provide feedback on the organisation’s volunteer involvement and relevant areas of the organisation’s work.
When employers recognise that professional management of volunteers is just as important as the professional management of their paid workforce, and resource accordingly, they can go a long way towards making the question of volunteer access to the Fair Work Commission redundant.
About Jason Clark
Jason Clark is a Worklogic Director. Jason has extensive experience as a workplace investigator, investigating a range of issues including fraud, bullying, harassment and sexual misconduct. He has also assisted numerous organisations develop strategies to minimise poor behaviour and encourage a positive workplace culture.
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