Fair Work Commission

At work

For a worker to be covered by the Fair Work Commission’s anti-workplace bullying laws, the alleged bullying behaviour must occur while the worker is ‘at work’.^[1]

The expression ‘at work’ is not defined in the legislation. The same expression is used in relation to the primary duty of care in s.19 of the WHS Act. The Explanatory Memorandum for that Act states that ‘the primary duty of care is tied to the work activities wherever they occur and is not limited to the confines of a physical workplace.’^[2]

Broadly speaking, a ‘worker’ is an individual who carries out work in any capacity for a person conducting a business or undertaking, including as an employee; a contractor or subcontractor; an outworker; an apprentice or trainee; a student gaining work experience, or a volunteer.^[3]

A worker may be ‘at work’ even if required to perform work at a place other than the employer’s premises, such as in the case of an employee of a labour hire business.^[4]

For the worker to be considered to be ‘at work’, the alleged bullying may not necessarily have to occur while the worker is actively engaged in work. The phrase has temporal connotations, and applies equally to all kinds of work, and includes entering, moving about and leaving a workplace.^[5] It is a broader phrase than ‘at the employer’s place of work’.^[6]

In Bowker and Others v DP World Melbourne Limited T/A DP World and Others^[7] a Full Bench of the Commission determined:

[48] We have concluded that the legal meaning of the expression ‘while the worker is at work’ certainly encompasses the circumstance in which the alleged bullying conduct (ie the repeated unreasonable behaviour) occurs at a time when the worker is ‘performing work’. Further, being ‘at work’ is not limited to the confines of a physical workplace. A worker will be ‘at work’ at any time the worker performs work, regardless of his or her location or the time of day.

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[31] It is important to appreciate that the definition of ‘bullied at work’ includes the requirement that an individual or group of individuals ‘repeatedly behaves unreasonably towards the worker [ie the applicant], or a group of workers of which the worker is a member’ (see s.789FD(a)(i) and (ii)). The individuals engaging in the unreasonable behaviour need not be workers, for example they could be customers of the business or undertaking in which the applicant works. Nor do the relevant statutory provisions contain any requirement for these individual(s) to be ‘at work’ at the time they engage in the unreasonable behaviour which the applicant contends constitutes bullying.

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[49] While a worker performing work will be ‘at work’ that is not an exhaustive exposition of the circumstances in which a worker may be held to be at work within the meaning of s.789FD(1)(a). For example, it was common ground at the hearing of this matter that a worker will be ‘at work’ while on an authorised meal break at the workplace and we agree with that proposition. But while a worker is on such a meal break he or she is not performing work. Indeed by definition they are on a break from the performance of work. It is unnecessary for us to determine whether the provisions apply in circumstances where a meal break is taken outside the workplace.

[50] In our view an approach which equates the meaning of ‘at work’ to the performance of work is inapt to encompass the range of circumstances in which a worker may be said to be ‘at work’.

[51] It seems to us that the concept of being ‘at work’ encompasses 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 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).

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[53] In most instances the practical application of the definition of ‘bullied at work’ in s.789FD will present little difficulty. But there will undoubtedly be cases which will be more complex, some of which were canvassed during the course of oral argument. For example, a worker receives a phone call from their supervisor about work related matters, while at home and outside their usual working hours. Is the worker ‘at work’ when he or she engages in such a conversation? In most cases the answer will be yes, but it will depend on the context, including custom and practice, and the nature of the worker’s contract.^[8]

Use of social media

In Bowker and Others v DP World Melbourne Limited T/A DP World and Others^[9] Full Bench of the Commission has given preliminary consideration to the complex issue of the circumstances in which a person who is the target of repeated unreasonable use of social media may be said to have been ‘bullied at work’ as follows:

[54] The use of social media to engage in bullying behaviour creates particular challenges. Conceptually there is little doubt that using social media to repeatedly behave unreasonably towards a worker constitutes bullying behaviour. But how does the definition of ‘bullied at work’ apply to such behaviour? For example, say the bullying behaviour consisted of a series of facebook posts. There is no requirement for the person who made the posts (the alleged bully) to be ‘at work’ at the time the posts were made, but what about the worker to whom they are directed?

[55] During the course of oral argument counsel for the MUA submitted that the worker would have to be ‘at work’ at the time the facebook posts were made. We reject this submission. The relevant behaviour is not limited to the point in time when the comments are first posted on facebook. The behaviour continues for as long as the comments remain on facebook. 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 at paragraph 51 above.

[56] We acknowledge that the meaning we have ascribed to s.789FD may give rise to some arbitrary results. A worker may only access comments on social media which constitute unreasonable behaviour (with the meaning of s.789FD(1)(a)) at a time when they are not ‘at work’ and the behaviour will not fall within the scope of Part 6-4B. But 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.^[10]

References