The anti-bullying provisions embedded in the Fair Work Act were initially thought to raise many difficulties for employers. A common sense approach however has been taken by the Fair Work Commission which diminishes those early concerns. In a ruling on the reach of the anti-bullying regime, a five-member FWC bench has held that “at work” means performing work or engaging in employer-authorised activities, rejecting a much broader definition sought.
President Iain Ross, Vice president Adam Hatcher, Deputy President Val Gostencik and Commissioners Perter Hampton and Leigh Johns, in a decision on the meaning “at work” in s789FD of the Fair Work Act, said the words encompassed “both the performance of work (at any time or location) and when the worker is engaged in some other activity which is authorised or permitted by their employer, or in the case of a contractor their principle (such as being on a meal break or assessing social media while performing work).”
The Bench said alleged bullies need not be “at work” at the time of their conduct.
The matter came before the Full Bench last year after three workers from DP World’s West Swanson dock in Melbourne sought anti-bullying orders against their employer and the MUA, who, in rare alliance, in turn asked the Tribunal to strike out some of the allegations on the basis that the conduct complained of did not occur while the employees were “at work”.
In a hearing in November during which the ACCI and AiG also made submissions the workers argued that the conduct occurred on the job if it had “substantial connection to work”, but the full Bench said there was “no persuasive argument linking the definition proffered with the actual language of s.789FD (1)(a))”.
The Tribunal said the words should be “construed conformably with the evidence policy or purpose of the substantive enactment and the mischief that it was designed to overcome”.
“As we have seen the mischief to which Part 6-4B is directed is workplace bullying.
[t]he words ‘at work’ in the expression ‘while the worker is at work’ (in s.789FD(1)(a)) are words of limitation which are intended to confine the operation of the substantive provisions.”
The Bench said that applying the definition would “present little difficulty” in most cases, but complexities would arise.
It gave as an example a worker receiving a phone call from his or her supervisor about work-related matters while at home and outside usual working hours, “is the worker ‘at work’ when he or she engages in such a conversation? In most cases the answer will be yes, but it will depend on the context, including custom and practise, and the nature of the worker’s contract.”
Turning to social media, the Full Bench rejected the MUA’s argument that workers would have to be “at work” when offending Facebook posts were made for the conduct to fall within the bullying regime.
Author: John Dawson is a partner at Carneys Lawyers and leads the aviation and employment law teams.