A recent decision of a full bench of the Fair Work Commission provides some guidance on the scope of the anti-bullying provisions of the Fair Work Act 2009 (Cth) (FW Act).
In broad terms, the anti-bullying jurisdiction provides protection for workers who are the victims of bullying at work. In Bowker v DP World Melbourne Limited,1 the Full Bench rejected the proposition that bullying occurs 'at work' if the relevant conduct has a 'substantial connection to work'. Instead, it held that the conduct must occur while the worker is performing work, wherever that may be, or when engaged in other activities authorised or permitted by the employer or principal (eg taking a meal break or using social media while performing work).
On this approach, in the context of alleged bullying over social media, a worker will have protection where the offending posts are accessed at work, but seemingly not if the posts have no relevant workplace connection, or are accessed when the worker is not at work.
In handing down its decision, the Full Bench appears to have been content to allow a disparity between the broader circumstances in which an employer may exert control over, for example, an employee's conduct on social media for disciplinary purposes, related, say, to allegations of unlawful discrimination or harassment, and the set of narrower circumstances in which a worker can seek anti-bullying remedies for the same or similar conduct.
In this eBulletin, we summarise the Fair Work Commission's anti-bullying jurisdiction, and explain the reasoning behind the Commission's decision. We also look at what the decision may mean for employers.
The antibullying jurisdiction
From 1 January 2014, a worker who has been bullied at work may apply to the Commission for an order to stop the bullying. While no compensation can be awarded by the Commission, if an order is granted, any subsequent breaches of it may lead to penalties, including monetary penalties, being imposed by a court.
The anti-bullying jurisdiction applies to 'workers', in the same sense as the word is used in the Work Health and Safety Act 2011(Cth). Broadly speaking, this means that the protections against bullying for workers extend to and include employees, contractors and subcontractors, outworkers, apprentices and trainees, work experience students and volunteers.
To lodge an application for a stop bullying order, a worker must reasonably believe that he or she has been bullied at work. For an order to be made, the Commission must be satisfied that:
- the worker has been 'bullied at work' by an individual or a group of individuals; and
- there is a risk that the worker will continue to be bullied at work by the individual or group.
'Bullied at work' occurs when an individual or group of individuals repeatedly behaves unreasonably towards a worker, or a group of workers of which the worker is a member, while the worker is at work, and that behaviour creates a risk to health and safety.
Bullying must take place 'at work'. For particular conduct to take place 'at work' the conduct must occur when the worker is 'at work'.
When a worker is 'at work' depends on the relevant circumstances, but they do not need to be at the physical premises of the workplace.
What happened in Bowker?
In Bowker the Commission convened a Full Bench to consider the meaning of the expression 'at work' in the context of an application for a stop-order for workplace bullying.
The applicants were three employees of DP World in Melbourne, a logistics and marine terminals business. Each employee applied for a stop-order supported by a number of allegations of bullying conduct by other employees of DP World, and by members and officials of the Maritime Union of Australia (MUA).
The conduct alleged to be bullying comprised, among other things:
- exclusion from union activities;
- encouragement to other union members to ostracise the applicants;
- various insulting Facebook posts and other offensive conduct.
In an unusual alliance between employer and union, DP World and the MUA sought to have a number of the allegations, including those relating to alleged bullying conduct on social media, struck out on the basis that the alleged bullying conduct did not occur 'at work'.
What did the Fair Work Commission decide?
The Full Bench dismissed the application to have the employees' allegations struck out, because doing so would not enable the matter to be dealt with more efficiently by the Commission. It remitted the matter back to Deputy President Gostencnik to take further evidence about the allegations.
However, despite the dismissal of the strike out application, the Full Bench interpreted the phrase 'while the worker is at work'narrowly, rejecting the employees' argument that conduct occurs 'at work' if it has a substantial connection to work.
In relation to the alleged bullying on social media, the employees urged the Commission to recognise (as it has for the purpose of determining unfair dismissal claims2) that the use of social media affecting employees in and outside the workplace, is conduct that may be subject to employer direction. Therefore, they argued that employers are expected to regulate its use through policies and the like.
The Full Bench rejected this approach as too broad. In coming to this conclusion, it looked at the plain language of the FW Act, the specific mischiefs it seeks to remedy and the overall context and purpose of the relevant provisions.
The Full Bench found that the relevant provisions in the FW Act were remedial or beneficiary in nature, and provided a measure of protection for workers which should not be construed strictly. Rather, the provisions should be taken to give the fullest relief to workers that a fair meaning of their language will allow.
The Full Bench also noted that the focus of the relevant provisions is on the worker, not on the alleged bullies. This means that there is no requirement that those individuals be fellow workers, nor are they required to be 'at work' at the time they engage in the alleged bullying.
At work, outside of work how far does the antibullying jurisdiction extend?
The key issue in this matter was whether the anti-bullying jurisdiction relates only to conduct occurring while the worker is at the workplace during working hours, or working for the employer at another location during working hours, as argued by DP World, the MUA and employer bodies, ACCI and the Ai Group.
The employees, on the other hand, argued for a broader approach, namely that the anti-bullying jurisdiction extends to conduct that has a substantial connection to work and, therefore, could be the subject of a lawful and reasonable direction by the employer and subsequently result in disciplinary action.
In resolving the question, the Full Bench emphasised the effect of the expression 'while the worker is at work' in the definition of'bullied at work'. The Full Bench said that these words were plainly intended to create a temporal connection between the bullying conduct and the worker being 'at work'.
Offensive conduct on social media may fall within the 'substantial connection' with work that would allow employers to give lawful and reasonable direction and take disciplinary action. However, often such conduct does not occur during working hours. In this regard, the Full Bench decided that offensive Facebook comments are taken to occur at the time the comments are posted and continue for as long as they remain on Facebook.
It followed, in the Full Bench's view, that the worker need not be at work when the comments are posted. It is enough to constitute bullying warranting a stop-order if the worker accessed the comments later, while at work.
The Full Bench acknowledged this approach may lead to arbitrary results. For example, a worker accessing comments on social media when they are not at work will not have a remedy. However, the Full Bench said that result was the consequence of the language the legislation used. That being said, and while it did not arise in the present case, the Full Bench suggested further difficulties arise when considering allegations of bullying by social media, for example Facebook posts with no relevant workplace connection (eg made by a former partner of the worker) may not have been intended to be caught by anti-bullying laws but, if they are accessed by a worker while at work, they may amount to bullying.
The Full Bench declined to prescribe the boundaries of when a worker may be said to be 'at work' for bullying purposes, preferring to allow the law to develop on a case by case basis. The Full Bench did say, however, that being 'at work' covers both:
- the performance of work at any time or location; as well as
- when a worker is engaged in some other activity authorised or permitted by their employer (such as being on a meal break or accessing social media while performing work).
What does this decision mean for employers?
It is to be hoped that future Commission decisions will provide more guidance for employers, particularly concerning allegations of bullying by use of social media.
Employers need to remain vigilant to prevent bullying in the workplace and to take appropriate action when allegations are made. Employers should also ensure they maintain comprehensive policies relating to bullying and other relevant behaviour, such as conduct on social media, to help clarify what is, and is not, acceptable behaviour.
Although comments posted on social media which are not accessed at work and which are quickly removed, or that are made by people with no connection to the workplace, may not amount to bullying, each case must be assessed on its own facts. Such conduct may still be within the employer's power to investigate and to take appropriate disciplinary action, depending on the circumstances. Employers and principals should seek advice before acting on bullying allegations.