In brief: A recent decision made by the Fair Work Commission (Commission) has held that directors can seek protection under federal anti-bullying laws.
This decision may require boardrooms across Australia to revisit the way they conduct business.
Case outlining the stop bullying order
Mr Adamson made an application for a stop bullying order under section 789FC of the Fair Work Act 2009 (FW Act
) alleging he had been subjected to bullying behaviours while acting as a chairperson of Anangu Pitjantjatjara Yankunytjatjara Inc (APY)
. The applicant claimed that APY's general manager and deputy chairperson bulled him by not allowing him to engage in executive board meetings, preventing him from accessing meeting minutes and by his refusal to deal with Mr Adamson.
APY contended that the Commission did not have the jurisdiction to deal with the claim, since the applicant was not a 'worker' as defined by section 7 of the Work Health and Safety Act 2
011 (WHS Act
). The WHS Act's definition of worker defines the scope of eligible applicants for stop bullying orders under the FW Act.
Commission explains definition of worker under WHS Act
The WHS Act defines a worker as being a person who carries out work, in any capacity, for a person conducting a business or undertaking (PCBU
), and provides numerous examples of workers including employees, contractors and volunteers.
The Commission explained that this definition of worker is intentionally broad.
Mr Adamson's Chairperson duties were said by the Commission to 'represent work' even though the duties did not fit 'neatly' into any of the categories listed the WHS Act.
Mr Adamson was found to be a 'worker' and eligible to apply for anti-bullying orders.
Ultimately, Mr Adamson's application was dismissed because at the time that the application was determined he was no longer on the board, so he was no longer at risk of bullying.
Boardroom activities are not exempt from the Fair Work Act 2009
Boardrooms are comprised of directors with different views and opinions which may lead to frank and forthright discussions and difficult decisions. These activities may give risk to actionable bullying claims.
If such an application is made, the Commission can make any order they consider appropriate in order to prevent the bullying from continuing to occur. This may include limiting workers interactions with one another or prohibiting the proximity of the individuals being accused of bullying with the applicant.
Such orders could have a significant impact on the efficiency, functioning and decision making of the board. Contraventions of these orders may result in the company facing financial penalties.
What this means for companies with boards
While this decision is unlikely to affect the way boards operate, it does demonstrate the expanding application of the Fair Work Act
into traditionally 'non employment' areas. To ensure that your board minimises the risk of such a claim, organisations could consider adopting a Code of Conduct specific to the operation of the board and implementing a grievance procedure. Additionally, organisations should ensuring training for the chair and board members about how to manage, maintain and effectively run board meetings.
Boards must be able to continue to debate and question proposals and decisions as part of good decision making. Perhaps ensuring politeness and consideration as well as good decision making, could take your boardroom from good to great.
This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2022.