9 April 2015

Scope of the Fair Work Act does not reach volunteer sent over the Pacific Ocean

Mircea Stancu [2015] FWC 1999

An Australian engineer sent overseas to volunteer for a government department in Kiribati has had his bullying application dismissed by the Fair Work Commission (“the Commission”) on grounds that he was performing work for the government department in Kiribati and that his engagement was outside the geographical reach of the Fair Work Act 2009 (Cth).

The engineer was a volunteer of Australian Volunteers International (“AVI“) and was engaged to perform work for The Ministry of Public Works and Utilities in South Tarawa, Kiribati. The bullying complaint was made about AVI’s Country Manager for Fiji and Kiribati after the engineer was disciplined for inappropriate conduct and behaviour. However, AVI raised the jurisdictional issue that the engineer was not undertaking “work” for AVI, but rather performing work for the Ministry. The Commission agreed with AVI, stating that the Ministry was the direct beneficiary of the work performed by the engineer and therefore, as a governmental department of Kiribati, was outside the scope of the jurisdiction. Surprisingly, AVI did not raise any jurisdictional objection that the engagement was outside the geographical reach of the FW Act.

Lessons for Employers

This case highlights that employers should:

  • always consider jurisdictional objections by identifying the parties to the relationship and whether the relationship falls within the Fair Work Act especially in the Commission’s anti-bullying jurisdiction; and
  • be aware that not all employers and relationships come under the Commission’s anti-bullying jurisdiction; and 
  • keep in mind that even if the employer or relationship does not fall under the Commission’s anti-bullying jurisdiction, employers should still follow best practice protocols to avoid bullying proceedings under other laws, such as prosecutions under work, health and safety laws.
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