AFEI Employers Adviser Article

 

Meaning of "At Work" in the Fair Work Commission

Anti-bullying Jurisdiction decided on case by case basis

Published: 28 April 2015

 

In Bowler & Ors v DP World Melbourne Limited & Ors, three employees of DP Work Melbourne Limited made an application   to the Fair Work Commission (the Commission) for an order to stop bullying.

 

The Legal Test

The Commission has jurisdiction to make orders to stop bullying only if the Commission is satisfied that ‘the worker has been bullied at work’ . In this case the employer  sought to dismiss a number of the claims on the basis that the conduct did not occur ‘at work’ and consequently the Commission did not have jurisdiction to make an order of this kind.

 

The Employee's Submissions

The employees contended that conduct occurs ‘at work’ if the conduct has a substantial connection to work. They argued  that ‘at work’ is any conduct which could be subject to a reasonable and lawful direction from the employer and within the scope of employment. This argument placed few limits on the time, location or reason the individual felt subject or exposed to bullying as long as there was a substantial connection to work.

 

The Employer's Submissions

The employer adopted a more narrow approach, arguing that bullying can only occur when the individual is physically ‘at work’. The Full Bench rejected this narrow construction instead favouring the argument that ‘at work’ can be at a time the employee is performing labour. The time or day of the labour was considered irrelevant with the only requirement being that the worker was subject to bullying at a time when they were completing tasks related to their employment.

 

Consideration and Conclusions

Whilst the alleged bullying occurred on social media, outside of work hours, the Commission held that there was no requirement for the person who committed the act to be ‘at work’ at the time. This was a rejection of the employes' argument, indicating the Commission may take a broader approach.

The employee's broader submission that there needs to be a substantial connection was, however, also rejected by the Commission, who stated that there is no persuasive argument linking their interpretation to the language of the Act.

The Commission reasoned that ‘at work’ was designed to operate as a limitation, confining the scope of the provision. ‘At work’ was viewed to account for both the performance of work (regardless of time or location) or when the worker is engaged in an activity prescribed or permitted by the employer in connection with the performance of their work i.e. a meal break or accessing social media in work hours. This is a narrowing of the original argument of substantial connection requiring the individual to be completing tasks or duties, regardless of whether this is physically at the workplace or not, required by their employment.

The Commission concluded that a cautious approach to the question of ‘at work’ must be adopted and advised that the concept should develop on a case by case basis.

 

 

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