Board members can occupy positions of high responsibility and power.  A recent decision of the Fair Work Commission has shed light however on whether they may also fall under the category of ‘worker’ for the purposes of anti-bullying laws.

A Full Bench of the Fair Work Commission (FWC) considered the meaning of “at work” in the context of an application for a stop bullying order.

The FWC found that “at work” encompasses:

1. the performance of work at any time or location; and
2. when the worker is engaged in some other activity which is authorised or permitted by their employer.

The FWC has the power under the Fair Work Act 2009 (Act) to make orders to stop bullying if it is satisfied that a worker has been “bullied at work”.

The FWC considered that the words ‘at work’ were intended to confine the operation of the substantive provisions of the Act, noting:

• a worker is ‘at work’ at a time when the worker is performing work;
• being ‘at work’ is not limited to the confines of a physical workplace;
• being ‘at work’ includes when the worker is engaged in other authorised activities, such as when on a meal break or accessing social media while performing work;
• individuals who engage in bullying conduct do not need to be workers but could, for example, be customers; and
• these individuals do not have to be ‘at work’ at the time they engage in the bullying conduct.
  

The tsunami of stop bullying applications expected to be lodged with by the Fair Work Commission (FWC) after 1  January 2014, was instead a trickle of only 343 application in the first six months of the jurisdiction, according to the FWC’s Annual Report for 2013-2014.

In the six month period ending 30 June 2014, the FWC received more than 100,000 website inquiries and more than 3,500 telephone inquiries relating  to the new workplace bullying jurisdiction. The 103,500 plus inquiries did not however, translate to a high number of applications. Instead, only 343 stop bullying applications were received. Out of those 343 applications 270 anti-bullying conferences/hearings were held and 197 applications were finalised. Of those 197 applications:

• 59 were withdrawn early in the case management process;
• 34 were withdrawn prior to proceedings;
• 63 were resolved during proceedings;
• 20 were withdrawn after conference/hearing and before a decision;
• 21 were resolved by way of a decision. Of those 21, 20 were dismissed (3 being dismissed on jurisdictional grounds; 4 dismissed as bullying was not found or there was no risk of bullying continuing; 13 dismissed as the worker didn’t pursue the claim or the claim was not properly made) and only one case resulted in a finding that bullying had occurred and was likely to continue occurring and a stop bullying order was made.

The numbers stand in stark contrast to the unfair dismissal jurisdiction which received 14,797 applications in the same period.

Despite the fact the anti-bullying jurisdiction has received few claims to date, the number of claims being made is increasing and employers should remain vigilant. Workplace bullying is a serious work health and safety issue and can result in adverse consequences for both employers and employees.