A Full Bench of the Fair Work Commission (FWC) considered the meaning of “at work” in the context of an application for a stop bullying order.
The FWC found that “at work” encompasses:
- 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.
The FWC has the power under the Fair Work Act 2009 (Act) to make orders to stop bullying if it is satisfied that a worker has been “bullied at work”.
The FWC considered that the words ‘at work’ were intended to confine the operation of the substantive provisions of the Act, noting:
- a worker is ‘at work’ at a time when the worker is performing work;
- being ‘at work’ is not limited to the confines of a physical workplace;
- being ‘at work’ includes when the worker is engaged in other authorised activities, such as when on a meal break or accessing social media while performing work;
- individuals who engage in bullying conduct do not need to be workers but could, for example, be customers; and
- these individuals do not have to be ‘at work’ at the time they engage in the bullying conduct.
Bullying via social media
The FWC acknowledged that the interpretation applied to “bullied at work” will present difficulties in certain applications, particularly in the realm of social media.
In this regard, the FWC commented that a worker does not have to be ‘at work’ at the time offending social media posts are made. It is sufficient if the worker accesses the comments while ‘at work’.
The FWC noted that this interpretation may give rise to some arbitrary results – for example, where a worker accesses offending social media post when they are not ‘at work’ and so may not be entitled to a remedy – but concluded that this was an inevitable consequence of the restrictive approach taken by legislature.