The bullying provisions in the Fair Work Act apply to workers
who believe they have been bullied at work however, since the
introduction of the bullying provisions at the beginning of last
year, a point of frustration for many of my HR clients has been the
lack of clarity surrounding the definition of "at work".
It is for that reason I was pleased to see that the Fair Work
Commission has recently provided some clarity regarding the
definition, which I am now excited to share!
A five member bench of the Fair Work Commission has held that
"at work" means "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 the employer, or
in the case of a contractor their principal (such as being on a
meal break or accessing social media while performing
The Commission commented that its definition is based on its
view that the words "at work" in section 789FD are words
of limitation which are intended to confine the operation of the
See Sharon Bowker, Annette Coombe, Stephen Zwarts v DP World
Melbourne Limited, Maritime Union of Australia (Victorian Branch)
and others  FWCFB 9227 (19 December 2014) for further
I regularly see the term "bullying" misused –
particularly in circumstances where an employee is simply unhappy
with what is happening in the workplace. Accordingly, for those of
us working in HR, it is really important that we are clear on what
constitutes bullying and in what circumstances the Fair Work
bullying provisions apply, so that we can clearly articulate that
to our employees.
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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