You are classified as a labour hire employee if you have an employment contract with an agency but you are assigned to perform work for another organisation (the host). In recent years, the use of labour hire employees has grown significantly and businesses now routinely look to agencies to provide their ongoing labour needs.
Generally, there is no employment contract between the host and the labour hire employee. As held in BWIV v Odco (1991) and Mason and Cox v McCann (1999), in the absence of any apparent intent to create such a contract, the courts will not imply that it exists. However, the host will still have obligations under work health and safety legislation to provide a safe workplace.
Section 19 of the Occupational Health and Safety Act 2004 (Vic) imposes a primary duty to protect health and safety at work on a person conducting a business or undertaking (PCBU) in relation to any ‘worker’. The term ‘worker’ is broadly defined under section 7 of the Work Health and Safety Act 2011 (Cth) to cover anyone working for a PCBU in any capacity, including a labour hire employee assigned to work at a host organisation.
The duty of care imposed by section 19 is not just concerned with risk of physical harm but extends to protecting an employees’ mental health and wellbeing.
Workplace bullying is defined in section 789FD (1) of the Fair Work Act (FWA) (2009) to mean ‘repeated and unreasonable behaviour, directed towards a worker or a group of workers, that creates a risk to health and safety’. Such behaviour must occur ‘while the worker is at work’. Bower v DP Melbourne (2014) held that the phrase ‘at work’ covers anything that happens while a person is performing work, whether at or away from their normal workplace. For example, cruel comments posted by a manager or co-worker on social media, if accessed during a work break or verbally repeated at the workplace will fall within the jurisdiction.
Another avenue of redress for a bullied labour hire employee may be via the General Protections provisions under the FWA. If you believe the bullying is occurring because of a protected reason (age, race etc) then you may consider lodging a General Protections Claim.
If you have any further questions in regards to workplace bullying or other employment law matters, do not hesitate to contact our lawyers about your rights.