On January 1 of this year, amendments were made to the Fair Work Act 2009 (Cth) including the incorporation of a 'workplace bullying' definition.

The new definition:

  1. A worker is bullied at work if:
    1. while the worker is at work in a constitutionally-covered business:
      1. an individual; or
      2. a group of individuals;

    repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member; and

    1. that behaviour creates a risk to health and safety.'

What does `behaves unreasonably' mean?

The Act does not provide a clear explanation of this phrase. The Fair Work Commission's `Anti-Bullying Benchbook' ( found online) provides some articulation of examples of bullying based on the case law. It includes: `aggressive and intimidating conduct', `belittling or humiliating conduct', `victimisation', `spreading malicious rumours', `practical jokes or initiation', `exclusion from work related events', and `unreasonable work expectations'.

How is `worker' defined?

The meaning of 'worker' applies the same interpretation of a worker found within the Work Health and Safety Act 2011 (Cth). It encompasses employees, contractors, sub contractors, an apprentice or trainee, a student on work experience, and volunteers working in a non wholly volunteer association. The intention of such a broad definition is to extend the ambit of anti-bullying measures to all persons associated with a workplace environment.

What is `at work'?

An ambiguity of the workplace bullying definition is the meaning of `at work', and whether it encapsulates circumstances beyond the traditional workplace. The Fair Work Commission's `Anti-Bullying Benchbook' suggests that 'at work' may not necessarily refer to the `place of work', or while the worker is actively engaged in work. The Benchbook contemplates for example, time during lunch breaks, working from home, and work trips. It remains unknown whether the definition could apply to cyberbullying conducted between workers during work hours and outside of work hours (in a work context).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.