Update Regarding the Coles Supermarkets Enterprise Agreement

In last month's Update, we reported that the Full Bench of the Fair Work Commission ("Commission") found that the Coles Store Team Enterprise Agreement 2014-17 ("2014 Agreement") did not pass the "better off overall test" ("BOOT"). Coles was given until 10 June 2016 to provide certain undertakings and if such undertakings were not provided, the Full Bench would make an order quashing the 2014 Agreement. However, Coles indicated that it will not provide undertakings, instead reverting to the Coles Supermarkets Australia Pty Ltd and Bi-Lo Pty Limited Retail Agreement 2011 ("2011 Agreement") while preserving wage and penalty rates (as contained in the 2014 Agreement) and honouring a previously agreed-upon pay rise of 1.5 percent.

In relation to the 2011 Agreement, Ms Penny Vickers lodged an application with the Commission pursuant to section 225 of the Fair Work Act 2009(Cth) seeking termination of the Agreement on the basis that it too does not pass the BOOT. Ms Vickers is an employee of Coles working three shifts per week at the Mount Ommaney store in Queensland. However, the Full Bench had not yet made an order quashing the decision to approve the 2014 Agreement at the time of her filing the application. The Commission dismissed Ms Vickers' application on 17 June 2016 with consent, after Ms Vickers agreed to withdraw her application on the basis that the 2014 Agreement remained in effect at the time of filing.

The Commission noted that it was open to Ms Vickers making a further application to terminate the 2011 Agreement, once an order of the Full Bench in relation to the 2014 Agreement has come into effect. The Full Bench has in turn made an order quashing the 2014 Agreement, which comes into effect on 5 July 2016. It is therefore likely Ms Vickers will file a further application to terminate the 2011 Agreement after this time.

Fair Work Commission Dismisses Bullying Claim for "Hurt Feelings"

The Commission has considered an application for a stop-bullying order brought by a casual receptionist against three co-workers working at a medical centre in Western Australia. The Commission dismissed the application on the basis that the alleged bullying was "over-estimated", "insubstantial" and that there was no repetition of unreasonable behaviour. Further, the anti-bullying provisions of the Fair Work Act 2009 (Cth) do not substantially protect a person's feelings.

Factual Background. Mrs Miranda Jane Gore, a casual receptionist at the Yura Yungi Aboriginal Medical Service in Halls Creek, Western Australia, filed an application on 16 December 2015 in the Commission for an order to stop bullying against three co-workers: Mr Nia Evans, Mrs Adrienne Evans and Mrs Kristine Chadwick.

Mrs Gore claimed that she was bullied and harassed by her co-workers, whose actions included: (i) speaking to her in an "impolite tone"; (ii) walking into reception to check up on her; (iii) praising another employee in front of her; (iv) reprimanding her for arriving to work late; (v) ceasing to reply to her text messages; (vi) ignoring her when she suggested improvements to her manager that could be made to the business; (vii) being told how to improve her performance by her manager; and (viii) being ignored when she called out a co-worker's name.

Legal Background. Section 789FD of the Fair Work Act 2009 (Cth) provides that a worker is bullied at work where: (i) an individual or group of individuals repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member; and (ii) that behaviour creates a risk to health and safety. However, a person is not bullied if it is reasonable management action carried out in a reasonable manner.

The Commission noted that when considering section 789FD: (i) "repeated" refers to more than one incident; (ii) "unreasonable behaviour" is determined objectively having regard to all the circumstances; (iii) a "risk to health and safety" is the possibility of being exposed to harm or danger to one's health and safety and that possibility must be a rationale and not an ideation; and (iv) "reasonable management action" refers to the ability of employers to take appropriate management action, including responding to poor performance, taking necessary disciplinary action and directing and controlling the way work is carried out.

Decision. The Commission dismissed the application, on the basis that the co-workers' actions did not constitute Mrs Gore being bullied at work because the alleged bullying was over-stated and insubstantial, with no repetition of unreasonable behaviour. In particular, the incident involving a co-worker's "impolite tone" was "too petty to record in any further detail and does a disservice to the definition of being bullied at work".  In addition, the Commission said that having a preference about how things should be done, like Mrs Gore, and suggestions not being agreed to by a manager, was not bullying. To deprive a manager of the ability to carry out his or her role in a reasonable way would be contrary to the intent of reasonable management exception.

Further, the Commission stated that the anti-bullying provisions of the Fair Work Act 2009 (Cth) are to protect bullying behaviour and not substantially a person's feelings. The facts and evidence in the case reinforced Parliament's important recognition of the distinction between reasonable workplace conduct and a person having a self-belief or feelings of discomfort. Such self-belief or feelings do not automatically transform into bullying. Finally, there was no risk to Mrs Gore's health and safety by returning to work.

Lessons for Employers. This decision provides employers an example of the sorts of conduct that do not constitute bullying within the meaning of the Fair Work Act 2009 (Cth). It also confirms the balancing act that the Commission will take when considering applications for stop-bullying orders, that is, the employee's perspective is balanced against the conduct of others, including reasonable management action carried out in a reasonable manner.