At first glance, the definition of the “workplace” in the context of bullying seems straightforward. However, with the increased prevalence of electronic communications, including smart phones and social media, this is no longer the case, as one can be contacted when not at work. The Full Bench of the Fair Work Commission is attempting to decide what constitutes being “at work” under the Fair Work Act’s bullying regime.
Three Melbourne dockworkers workers have sought bullying orders against their employer and the union, and have alleged that the behaviour against them includes Facebook messages that in some cases were sent while they were not physically at work on Melbourne’s West Swanson dock.
The workers say they have been ostracised at the dock after one of them complained to management about another member’s conduct, instead of first taking the matter to the union. They say they have been dubbed “laggers”, second only to “scab” in the hierarchy of “crimes” that a wharf labourer can commit.
The workers’ barrister said the content of a social media post could be deemed work-related bullying, regardless of whether it happened at work: “It’s a question of the context and the character of it. If it relates to the employment … that doesn’t take it out of being at work.” He said there was nothing inherent in the expression that required the FWC to limit its application to a particular physical workplace – if the conduct could be the subject of a lawful and reasonable direction, and result in disciplinary action, it was caught by the regime.
One could even be bullied while sleeping, argued the barrister – social media messages sent while an employee was at home or even asleep could be caught by the bullying provisions if they had the necessary connection with work. That behaviour could include failing to remove a Facebook post, such that an employee might eventually read it when physically at work. But he also argued that it was not necessary for the worker ever to have read the message if there was a “risk” to health and safety.
One of the judges questioned what difference it would make if an individual wrote on a wall near the workplace that “X is a lagger”. “Does it matter when you wrote it?” However, in a case of strange bedfellows, the MUA, DP World and two employer organisations contradicted this argument. The union’s barrister said the expression “while the worker is at work” required a “temporal” connection, such that the employee had to be working at the time of the conduct, whether in the physical workplace or elsewhere. The company and the employer organisations agreed.
Employer groups believe the phrase “bullied at work” confines the Full Bench. “We will argue that this phrase limits the commission’s jurisdiction to circumstances where the bullying occurs when the worker is carrying out work at the employer’s workplace during working hours or carrying out work for the employer at another location during working hours,” says Stephen Smith, Ai Group’s national workplace relations director. “There needs to be a tangible and reasonable boundary so that employers are not exposed to claims for conduct that occurs outside of work.”
Under the Fair Work Act, a worker is bullied at work if an individual or group of individuals repeatedly behaves unreasonably towards the worker and that behaviour creates a risk to health and safety. Given the nature of the allegations made by the three workers, the full bench will consider whether the bullying jurisdiction extends to Facebook comments and other activities outside the physical confines of a workplace.
The workers’ solicitor says the commission is used to dealing with clashes between work and out-of-hours conduct. “There is a substantial history of commission cases allowing for control over social media and nominally out-of hours conduct where the conduct has potential to seriously damage other workers in their work,” he says. “Any more restrictive view of when conduct occurs while a worker is ‘at work’ would limit the capacity to use anti-bullying measures to prevent unreasonable third-party behaviour affecting work. “The Full Bench case will be an important development in understanding how and when anti-bullying orders can be used, and we are looking forward to putting these submissions to the Commission and moving closer to there being some resolution for the individual applicants.” All three workers are currently on special paid leave. The Full Bench will reserve its decision. The workers’ substantive application had been listed for a 10-day hearing in December, but that has now been delayed pending the full bench’s jurisdictional decision.
iHR believes creating a constructive, safe and lawful workplace culture will reduce the risk of psychological injury to employees. This includes engaging workplace culture experts such as iHR early in the peace rather than waiting for a formal bullying complaint to progress to an external body such as the FWC.
