Do you need to be "at work" to be bullied under the Fair Work Act?

In an important decision, a full bench of the Fair Work Commission (the Commission) has provided some guidance on when a worker is "at work" for the purposes of a bullying complaint.

Background

Under the Fair Work Act's anti-bullying regime, the Commission may make an order to stop bullying if it is satisfied that a worker has been "bullied at work". The term "at work" is defined as "while the worker is at work".

In this matter, three employees (the Applicants) of DP World Melbourne Limited (DP World) and members of the Maritime Union of Australia (MUA), each made an application against both DP World and the MUA, for an order to stop bullying conduct.

It was alleged that DP World and the MUA had engaged in various forms of unreasonable behaviour including:

• MUA took no action to prevent two of the Applicants being called "laggers" and failed to advise members that some allegations against one of the Applicants were wrong;
• DP World employees who were MUA members made unreasonable and insulting Facebook posts;
• a MUA official had suggested one Applicant had acted wrongly and should be ostracised, and on other occasions encouraged other members not to associate with some of the Applicants;
• a MUA official indicated he was unwilling or unable to protect one of the Applicants from harm or bullying conduct and failed to provide representation and advice to two of the Applicants;
• an employee of DP World and a MUA delegate excluded two of the employees from union activities relevant to them;
• a DP World employee and MUA member described one of the Applicants as a "scab";
• DP World employees who were MUA members made various threats and encouraged other members not to associate with one of more of the Applicants; and
• a MUA official questioned why one of the Applicants had reported the existence of graffiti in the canteen which was directed at two of the Applicants.

DP World and the MUA sought, but failed, to have some of the allegations struck on the basis that the conduct did not occur "at work" - for instance, that the Facebook posts were made outside of the working day.

Determination

The Commission found that the term "while the worker is at work" occurs at a time when the worker is performing work although it is not limited the confines of a physical workplace. The Commission found that "… the concept of being 'at work' encompasses both 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, or in the case of a contractor their principal (such as being on a meal break or accessing social media while performing work)."

However, it is not necessary for the individual engaging in the unreasonable behaviour (that is, the alleged bully) toward a worker to be at work at the time they engage in that behaviour.

The Commission noted the approach may potentially cause difficulties in some cases - for instance when the bullying behaviour consists of a series of inappropriate Facebook posts. While it may not be necessary for the person who made the posts or the worker to be at work when the posts were made, it would potentially become bullying behaviour if the worker accessed Facebook at work and while undertaking some other activity authorised or permitted by their employer.

It was noted however, that this is an involving area and each particular case will depend on the all circumstances and that "jurisprudence will develop on a case by case basis."

Take-away points

Although the Commission has provided some welcome guidance in relation to the reach of the anti-bullying jurisdiction, it is still very much a 'watch this space' scenario as this area of the law evolves.

For now, employers should ensure that:

• they have up to date anti-bullying and social media policies in place;
• ensure that those policies include a clear and effective complaint process; and
• ensure those policies are distributed to employees and appropriate training and information sessions undertaken.

If you would like to know more about this case or bullying generally, please contact National Workplace Lawyers on +61 2 9233 3989.

National Workplace Lawyers

Note — this is for information purposes only and does not purport to be comprehensive or to render legal advice.