Full Bench of the Fair Work Commission Clarifies the Definition of ‘Bullying at Work’
Case: Bowker, Coombe & Zwarts v DP World Melbourne Limited, Maritime Union of Australia & others  FWCFB 9227
In a ruling on the extent of the anti-bullying regime, a five member bench of the Fair Work Commission has held that "at work" means performing work or engaging in employer authorised activities in doing so rejecting a much broader definition which was sought by a group of DP World employees. The full bench said alleged bullies need not be "at work" at the time of their conduct.
President Iain Ross, Vice President Adam Hatcher, Deputy President Val Gostencnik, Commissioner Peter Hampton and Commissioner Leigh Johns, in a decision on the meaning of at work in s789FD of the Fair Work Act, said the words encompassed both the performance of work wherever and whenever, 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.
Three workers from DP World's West Swanson dock in Melbourne sought anti-bullying orders against their employer and the Maritime Union of Australia, who asked the tribunal to strike out some of the allegations on the basis that the conduct complained of didn't occur while the employees were at work. The allegations related to conduct that the workers' claimed was a failure by officials to represent and advise them, phone calls made and received about them, references to them as laggers and scabs and insulting Facebook posts.
In hearings in which the ACCI and AIG made intervening submissions, the workers said that the conduct occurred on the job as it had a substantial connection to work. However the full bench said there was no link with the definition suggested and the actual language of s.789FD(1)(a).
The words 'at work' in the expression 'while the worker is at work' are intentional words of limitation, which are intended to confine the operation of the provisions. An example may be a worker receiving a phone call from the workers supervisor about work matters while at home and outside usual working hours, would the worker be considered to be at work, in most cases the answer would be yes. But overall it will depend on the context, including custom and practice, and the nature of the worker's contract of employment. Considering the situation of social media, the full bench rejected the argument that workers would have to be at work when offending communications were made for the conduct to fall within bullying under the Act. The Full Bench said "it follows that the worker need not be 'at work' at the time the comments are posted, it would suffice if they accessed the comments later while 'at work', subject to the comment we make on 'at work' encompassing both the performance of work and the worker being engaged in an activity authorised or permitted by their employer.
The Full Bench also said in regards possible difficult results of the application of the definition "… it seems to us that such a consequence necessarily follows from the fact that the legislature has adopted a definition which is intended to confine the operation of the substantive provisions."
The Full bench rejected the argument by DP World and the MUA to have some of the workers' allegations struck out because they fell outside the scope of s789FD, saying the tribunal was "not a court of pleading and acceding to such a strike out application introduces a level of legal technicality which is inimicable to the manner in which the Commission is to perform its functions and exercise its powers."
The matter was remitted to Deputy President Gostencnik to determine whether the proceedings should be confined, and if so, to what extent.
The commissioner said the employees might be entitled to GEERS payments before the company became insolvent if they had obtained a reinstatement order.
She said a reinstatement order might have utility for two reasons. "First, FWA may order an amount for lost remuneration under s.391(3) of the Act. It is arguable that such an Order constitutes unpaid wages. Secondly, an Applicant who is reinstated and subsequently made redundant because of the financial circumstances of a Respondent becomes entitled to redundancy pay." The commissioner said there was also a potential prejudice to the employees if their applications were held over until after the creditors meeting, "namely that if the creditors meeting resolves to voluntarily wind up [AGM], s.500 of the Corporations Act would prohibit the applications being further dealt with by FWA except by leave of the Court."