A recent decision of the Fair Work Commission means that boardroom disagreements and behaviours may now be the subject of scrutiny and, where appropriate, stop bullying orders, by the Fair Work Commission. Boards should ensure that they have a clear understanding of anti-bullying laws and that there are appropriate policies in place to regulate their conduct.
Mr Adamson, who was the Chairperson of the Executive Board of the Anangu Pitjantjatjara Yankunytjatjara Inc (APY), made an application for a stop bullying order under section 789FC of the Fair Work Act 2009 (Cth) (FW Act). Mr Adamson claimed that he was bullied by the Deputy Chairman of the Executive Board and the General Manager.
Ultimately, Commissioner Hampton did not issue an order because Mr Adamson was not re-elected as Chairperson, and there was therefore no risk that he would ‘continue to be bullied at work’ as required under section 789FF(1)(b)(ii) of the FW Act.
However, Commissioner Hampton did make a preliminary finding that Mr Adamson was a ‘worker’ within the meaning of the FW Act (which is defined by reference to section 7 of the Work, Health and Safety Act 2011 (Cth) (WHS Act)) and therefore eligible to bring the application. In so finding, Commissioner Hampton noted that:
- according to the explanatory memorandum for the WHS Act, the broad definition of ‘worker’ rather than ‘employee’ recognises the changing nature of work relationships and ensures that protection is extended to all types of workers; and
- the list of examples of workers in section 7(1) of the WHS Act (which did not expressly include a director), was not intended be exhaustive, and the fact that Mr Adamson’s role did not fit neatly into one of the listed examples was not decisive.
Rather, the essential question was whether Mr Adamson, as Chairperson, was “carrying out any work in any capacity “for APY and in this regard, Commissioner Hampton found that:
- the activities undertaken by Mr Adamson in attending to the duties of Chairperson of APY represented work in a literal and contextual sense;
- as Chairperson, Mr Adamson could be directed to act for and on behalf of the Executive Board provided he is acting in accordance with a resolution of that Board;
- without such resolution, Mr Adamson was unable to give directions to APY staff or make or implement any decisions (other than calling meetings); and
- Mr Adamson received relatively significant additional remuneration and expense payments (which exceeded cost reimbursement) as Chairperson which, while not decisive, was consistent with the work being undertaken for APY.
Further, Commissioner Hampton noted that while Mr Adamson may not be considered to be a ‘worker’ in the traditional sense of the difference between a manager/employer and a worker, the context in which the expression is used here is different.