The Case

Mr Adamson, who was the Chairperson of the Executive Board of the Anangu Pitjantjatjara Yankunytjatjara Inc (APY), made an application for a stop bullying order under s 789FC of the Fair Work Act 2009 (Cth) (FW Act). Mr Adamson claimed he was bullied by the Deputy Chairman and General Manager of the Executive Board.

The Executive Board asserted that Mr Adamson could not apply for a stop bullying order as he was a director, not a ‘worker’ and hence did not have access to the protections of the anti-bullying provisions of the FW Act.

The Verdict

The FWC found that Mr Adamson was a ‘worker’ within the meaning of the FW Act. The term ‘worker’ is defined in s 789FC of the FW Act, where it is given the same meaning as in the Work Health and Safety Act 2011 (Cth) (WHS Act). The WHS Act contains a broad definition of ‘worker’, which includes a broader group of relationships and is not confined to the relationship between ‘employer’ and ‘employee’. The WHS Act recognises the changing nature of work relationships and ensures that protection is extended to all types of workers.

The FWC held that the essential question to be answered was whether Mr Adamson, as Chairperson, was ‘carrying out any work in any capacity’. The FWC found:

• the activities undertaken by Mr Adamson in attending to the duties of Chairperson of APY represented work for APY;
• as Chairperson, Mr Adamson could be directed to act for and on behalf of the Executive Board provided he was acting in accordance with a resolution of that Board;
• without such resolution, Mr Adamson was unable to give directions to APY staff or make or implement any decisions (other than call meetings); and
• Mr Adamson received significant additional remuneration and expense payments (which exceeded cost reimbursement) as Chairperson, which was consistent with the work he did for APY.

The FWC held that for the purposes of workplace bullying laws under the FW Act, company directors who are undertaking work can apply for stop bullying orders.

Ultimately Commissioner Hampton of the FWC could not issue a stop bullying order because at the time the proceedings came before the FWC, Mr Adamson was not reelected as Chairperson. As such, there was no future risk that he would ‘continue to be bullied at work’ as required under s 789FF(1)(b)(ii) of the FW Act.

Lessons for You

Under the FW 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. This is an objective test. While the FW Act does not define ‘unreasonable behaviour’, the Explanatory Memorandum states it would include victimising, humiliating, threatening or intimidating the applicant.

Even if an application for a stop bullying order is ultimately dismissed, or the orders can be complied with easily, the period between application and the FWC’s decision could paralyse the Board.

To reduce the risk of stop bullying orders at Board level, employers should ensure all directors are aware of the standards of appropriate conduct they must uphold and ensure Board members are trained on the effect and operation of workplace bullying laws.

Please note: Case law is reported as correct and current at time of publishing. Be aware that cases in lower courts may be appealed and decisions subsequently overturned.