In the recent decision of Sharon Bowker, Annette Coombe, Stephen Zwarts v DP World Melbourne Limited, Maritime Union of Australia (Victorian Branch) and others  FWCFB 9227 the Full Bench of the Fair Work Commission considered the meaning of ‘at work’ for the purposes of the anti-bullying provisions in the Fair Work Act 2009.
The decision confirms that Facebook comments can amount to bullying at work. The decision also highlights challenges for employers when managing the conduct of their employees on social media.
In late 2014, three workers from DP World Melbourne Limited (DP World) made applications for orders to ‘stop bullying’ under section 789FC of the Fair Work Act (FW Act). The employees alleged that they had been subjected to various acts of bullying from DP World employees and from members and officials of the Maritime Union of Australia (MUA).
The applicants presented an extensive list of alleged bullying conduct, which included:
- MUA members and officials posting various comments about two of the applicants on Facebook;
- comments made by MUA officials about ostracising the applicants;
- excluding the applicants from a number of union activities; and
- various DP World employees and MUA officials calling the applicants ‘scabs’.
DP World and the MUA applied to have some of the applicants’ allegations struck out on the basis that some of the alleged conduct did not occur ‘at work’ and therefore did not fall within the jurisdiction of the anti-bullying provisions in the FW Act. The MUA contended that in order for the Facebook comments to fall within the meaning of ‘at work’, the comments needed to have been made on the applicants’ Facebook pages while they were ‘at work’.
To make a stop bullying order, the FWC must be satisfied not only that the worker has been bullied (within the meaning in the FW Act) but that the bullying has occurred ‘at work’. Recognising the importance of this issue, the matter was referred to the Full Bench of the FWC for determination and submissions were invited from the Commonwealth and other peak industry bodies.
After extensive analysis of the meaning of ‘at work’, the Full Bench confirmed that the meaning of ‘at work’ is not limited to being in a physical workplace. The FWC said that the term ‘at work’ also includes a time when the worker is engaged in some other activity that is authorised or permitted by their employer, such as accessing social media while performing work.
The Full Bench said that it did not matter when the Facebook comments were posted on Facebook. What mattered was that the workers accessed the Facebook comments while ‘at work’ or when engaged in another activity authorised and permitted by their employer.
Social media and bullying
In addition to providing important clarification on the scope of the meaning of ‘at work’ for employers, this case also highlights the challenges employers face managing the conduct of their employees on social media. Employers who do not allow access to social media at work may think they are ‘in the clear’. However, with social media access available on most personal devices, there is very little employers can do to prevent access to social media during work hours.
It is critical that employers have robust social media policies and training to prevent (or minimise) workplace bullying and unlawful behaviour on social media.