The bullying provisions in the Fair Work Act apply to workers who believe they have been bullied at work however, since the introduction of the bullying provisions at the beginning of last year, a point of frustration for many of my HR clients has been the lack of clarity surrounding the definition of "at work". It is for that reason I was pleased to see that the Fair Work Commission has recently provided some clarity regarding the definition, which I am now excited to share!
A five member bench of the Fair Work Commission has held that "at work" means "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 the employer, or in the case of a contractor their principal (such as being on a meal break or accessing social media while performing work)".
The Commission commented that its definition is based on its view that the words "at work" in section 789FD are words of limitation which are intended to confine the operation of the substantive provisions.
See Sharon Bowker, Annette Coombe, Stephen Zwarts v DP World Melbourne Limited, Maritime Union of Australia (Victorian Branch) and others [2014] FWCFB 9227 (19 December 2014) for further information.
I regularly see the term "bullying" misused – particularly in circumstances where an employee is simply unhappy with what is happening in the workplace. Accordingly, for those of us working in HR, it is really important that we are clear on what constitutes bullying and in what circumstances the Fair Work bullying provisions apply, so that we can clearly articulate that to our employees.
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