A Full Bench of the Fair Work Commission has narrowly interpreted the meaning of being “at work” for the purposes of the workplace bullying jurisdiction under the Fair Work Act 2009 (Cth) (FW Act).
Implications for employers
This is another important clarification on the scope of the workplace bullying jurisdiction under the FW Act. Whilst the Full Bench has interpreted the meaning of “at work” narrowly, employers should remain mindful that bullying conduct that has a substantial connection to work (but does not occur “at work”) will continue to be captured under discrimination legislation and most workplace bullying policies.
Three employees of DP World Melbourne Limited (DP World) applied to the Fair Work Commission for orders against existing and former employees of DP World, members of the Maritime Union of Australia (MUA) and/or officials of the MUA, to stop bullying.
Section 789FD of the FW Act provides that a worker is bullied at work if while the worker is at work an individual(s) repeatedly behaves unreasonably towards the worker and that behaviour creates a risk to health and safety. DP World and the MUA sought to strike out certain allegations on the basis that the alleged bullying conduct did not occur “at work” within the meaning of section 789FD of the FW Act. For example, DP World and the MUA contended that the following allegations should be struck out:
- various Facebook posts made by employees of DP World who are members of the MUA, and by MUA officials, containing various unreasonable and insulting allegations and comparisons of two of the Applicants;
- that during the course of a union meeting that was conducted in facilities made available to the MUA, the MUA official suggested that one of the Applicants had acted wrongly and should be ostracised from the group; and
- that an employee of DP World and member of the MUA had described one of the Applicant’s as a ‘scab’ in a telephone conversation with another DP World employee.
As the meaning of "bullied at work" was considered central to the operation of the workplace bullying provisions under the FW Act, the matter was referred to a Full Bench of the Fair Work Commission for determination.
The Full Bench dismissed the strike out application and remitted the matter to Deputy President Gostencnik to hear the evidence about the alleged bullying conduct and to determine the extent to which the proceedings were to be confined (if at all).
The Full Bench clarified that the meaning of the words “while the worker is at work”, and particularly the words “at work” were in contention in these proceedings. The Full Bench rejected the Applicants’ submission that conduct occurs “at work” if it has a substantial connection to work. Rather, the Full Bench held that the concept of being “at work” encompasses circumstances in which the alleged bullying conduct occurs when the worker is performing work (at any time or location) and when the worker is engaged in some other employer authorised activity (such as being on a meal break or accessing social media while performing work).
The Full Bench also recognised that particular challenges arise when social media is being used to engage in bullying conduct. For example, with respect to unreasonable behaviour manifested through Facebook posts, the Full Bench stated that workers do not need to be “at work” when the comments are posted but they could access the comments later while “at work”. The Full Bench acknowledged that such an interpretation may give rise to arbitrary, but unavoidable, results where for example, bullying does not fall within the scope of the FW Act because workers only access the Facebook comments when they are not "at work".
The Full Bench warned that a cautious approach should be adopted in interpreting the meaning of “at work” as bullying manifests in a diversity of circumstances and as such, the meaning should be developed on a case by case basis.