A Full Bench of the Fair Work Commission has handed down a decision clarifying some aspects of the definition of workplace bullying.
Changes to the Fair Work legislation have made it possible for employees to apply to the Fair Work Commission for an order to stop bullying, where this occurs 'while the worker is at work'.
In a matter involving three employees who claimed they had been bullied at work, the Full Bench considered the meaning of 'at work' under s.789FF(1)(b)(i) of the Fair Work Act 2009. The case involved allegations that officials and/or delegates of the Maritime Union of Australia had engaged in bullying conduct towards the employees.
The employees argued that bullying occurs 'at work' if the conduct has a substantial connection to work. They said that the definition should be expansive enough to include the following behaviour:
- conduct involving making social media postings that are visible to work colleagues;
- conduct by work colleagues outside the workplace which is inconsistent with training undertaken by the employer and the exercise of authority assumed by the employer over those out-of-hours activities;
- conduct by unionofficials or delegates in or outside the workplace under which they have assumed or sought to assume the function of controlling or dealing with workplace grievances; or
- conduct by union officials or delegates in or outside the workplace by which they have expressed disapproval or censure, or sought to have others express disapproval or censure against the employees concerned.
The employer, the MUA and employer associations argued that conduct occurs while the worker is ‘at work’ if it occurs at 'any time that the worker is performing labour'. They submitted that conduct does not fall within this definition if:
- the conduct is engaged in by person(s) who are not work colleagues and occurs outside the workplace;
- the conduct occurs outside the workplace at a time when the employee is not undertaking work activities; and/or
- the conduct occurs outside the workplace and is not related to the work being undertaken by the worker (for example, where the conduct occurs in the context of the employee's union membership).
The Full Bench rejected the employee's submission that conduct occurs ‘at work’ if it has ‘a substantial connection to work’, concluding that the legislation was intended to have a narrower application to that. In the decision, the Full Bench stated:
The Full Bench acknowledged the difficulties associated with the use of social media, noting in the decision:
The Full Bench foreshadowed further clarification of the definition in future cases , stating: