IN a landmark case against the Maritime Union of Australia (MUA), the Fair Work Commission has expanded the definition of bullying at work, enabling three Melbourne port employees to pursue a stop bullying order against maritime union delegates.
Employees Sharon Bowker, Annette Coombe and Stephen Zwarts launched proceedings against port operator DP World and the MUA after ‘aggressive and intimidating behaviour’ by union delegates left them fearing for their safety on-site at West Swanson dock.
As part of preliminary hearings for the matter, the MUA sought to have nine of the complaints struck out, arguing the alleged conduct did not occur ‘at work’ within the meaning of section 789FD of the Fair Work Act 2009.
The MUA submitted that a person could not be bullied ‘at work’ if the conduct:
- Was between parties who were not work colleagues;
- Occurred outside the workplace when the applicant was not performing work activities; or
- Was not related to the work being undertaken, such as in the context of union membership.
Upon consideration, the Full Bench of the Fair Work Commission rejected the MUA’s position.
“It seems to us that 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, or in the case of a contractor their principal such as being on a meal break or accessing social media while performing work,” the commission said.
One of the complaints made by the workers was in relation to derogatory posts made by union delegates to social media platform Facebook. The MUA submitted that a complainant would have to be at work when the posts were made in order for the conduct to constitute ‘bullying at work’.
“The use of social media to engage in bullying behaviour creates particular challenges. Conceptually there is little doubt that using social media to repeatedly behave unreasonably towards a worker constitutes bullying behaviour,” the Full Bench said on the matter.
“The relevant behaviour is not limited to the point in time when the comments are first posted on Facebook. The behaviour continues for as long as the comments remain on Facebook.
“It follows that the worker need not be ‘at work’ at the time the comments are posted, it would suffice if they accessed the comments later while ‘at work’.”
The application to have the complaints struck out was dismissed and the case handed to a single judge of the commission to assess whether the conduct constituted workplace bullying.
Click here to read the full decision.
Implications for Employers
A leading outcome from this preliminary hearing for a stop-bullying order is the inclusion of social media as a possible outlet for bullying conduct.
AMMA members are encouraged to develop social media policies that clearly define what conduct is acceptable in the digital space and how related misconduct will be addressed by your organisation.
Including and communicating provisions relating to social media will ensure all employees are aware of acceptable and unacceptable conduct online, reducing the risk of litigation in relation to bullying and harassment.
AMMA’s team of workplace relations experts can provide advice, information and guidance about implementing policies and procedures that protect your employees and your organisation. Contact your local AMMA office for more information.