Published 2 February 2015
The full bench of the Fair Work Commission has ruled on the reach of the anti-bullying jurisdiction, holding that ‘at work’ means performing work (at any time or location) or engaging in employer-authorised activities.
Three employees of DP World Melbourne Limited (DP World) made an application to the Fair Work Commission (FWC) for an order to stop bullying against DP World and the Maritime Union of Australia.
The FWC only has jurisdiction to make orders to stop bullying if it is satisfied that “the worker has been bullied at work”. DP World and the Maritime Union sought to have a number of allegations struck out on the basis that the alleged conduct was not ‘at work’. The FWC were then required to consider the meaning of ‘at work’ and what conduct would fall within that scope.
The full bench of the FWC found that:
- The expression ‘while the worker is at work’ encompasses conduct that occurs when the worker is ‘performing work’.
- 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 the day.
- The meaning of ‘at work’ in a particular case will depend on all the circumstances and it is appropriate that the jurisprudence develop on a case by case basis.
The FWC concluded:
“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 (such as being on a meal break or accessing social media while performing work).” The Commission considered in what circumstances an employee would be ‘at work’.
- A worker on an authorised meal beak at the workplace will be ‘at work’.
- If a worker receives a phone call from their supervisor about work related matters, while at home and outside their usual working hours, the worker will usually be ‘at work’ but this will depend on the context, including custom and practice, and the nature of the worker’s contract.
- If a person makes Facebook posts, the behaviour is not limited to the point in time when the comments are first posted on Facebook, but continues for as long as the comments remain on Facebook. The worker must access the comments whilst ‘at work’.
Read the full decision here.