In the decision of Bowker & Ors v DP World Melbourne Ltd t/a DP World & Ors [2014] FWCFB 9227 the Full Bench of the Fair Work Commission has provided some important guidance on the definition of the term "at work" for the purposes of the anti-bullying provisions of the Fair Work Act 2009 (Cth).
As previously outlined in an earlier Kemp Strang alert http://www.kempstrang.com.au/publication/be-prepared-or-be-caught-web-workplace-bullying Part6-4B of the Fair Work Act allows an aggrieved worker to make an application for an order to stop bullying to the Fair Work Commission. In making an application, a worker must be able to prove a number of elements, namely that the bullying occurred "at work" and there is a risk that the worker will be continued to be bullied at work.
In the present proceedings, three employees of DP World Melbourne Ltd t/a DP World (DP World) lodged an application for an order to stop bullying against DP World and the MUA, claiming they had been bullied whist at work. DP World and the MUA sought to have this application struck out, or limited on the basis that some of the conduct complained of did not occur "at work" and thereby the Commission's jurisdiction was not enlivened.
The Commission looked at recent case law which interpreted similar phrases for the purposes of other legislation such as the Work Health and Safety Act 2011 (Cth), and examined the phrase "at work" by looking at the common and every day usage of the terms.
Temporal connection required
The Full Bench highlighted that the expression "while the worker is at work" is intended to create a 'temporal connection' between the bullying conduct and the applicant worker being at work, and rejected the workers' argument that "at work" means to have a "substantial connection to work". They also noted that the "mischief" in which Part 6-4B is aimed to remedy is workplace bullying and was introduced to enable workers subjected to bullying to seek remedies through an adjudicative process.
In doing so the Full Bench concluded that the term includes circumstances where the alleged bullying occurred at a time when the worker was "performing work" but noted that this was not limited to the physical workplace. The term encompasses situations where a worker is engaged in and is performing work, regardless of the location or the time of the day. This extends to include situations where the worker is engaged in some other activity that is permitted or authorised by their employer or principal such as during a meal break.
Case by case analysis
The Commission acknowledged that the best approach is to develop the definition and its application over time on a case by case basis, noting that while in most cases the definition of "at work" will be clear cut it is likely cases will arise which are more complex. The Full Bench used the example of a worker who receives a phone call at home and outside ordinary work hours. The Commission noted that whilst in most cases it is likely that such circumstances this will be covered by the anti-bullying provisions, situations like this will need to be dealt with individually.
Bullying and social media
The Full Bench also noted the challenges social media sites such as Facebook may create if such sites are used to engage in bullying behaviour. It was held that behaviour on sites such as Facebook is not limited to the point when the comment is first posted, but continues for as long as the comments remain on the site. Further a worker does not have to be "at work" at the time the comments were posted, rather it would be sufficient if the worker accessed the comments later whilst "at work".
One year on – what have we learnt?
Since the introduction of the bullying provisions into the Fair Work Act effective just over a year ago in January 2014 it is important to note that:
- The Commission is not prevented from considering behaviour that occurred prior to 1 January 2014 when the amendments were introduced;
- The employer must be a "trading corporation" for the jurisdiction to be enlivened;
- The definition of reasonable management action is relatively broad, thereby placing less restrictions on employers to discipline and manage the performance of workers;
- A worker need not physically be "at work" for jurisdiction to be enlivened, rather they must be engaging in work and performing work or some other activity authorised by their employer. This however will be dealt with on a case by case basis.
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.
