In the decision of Bowker & Ors v DP World Melbourne Ltd
t/a DP World & Ors  FWCFB 9227 the Full Bench of the
Fair Work Commission has provided some important guidance on the
definition of the term "at work" for the purposes of the
anti-bullying provisions of the Fair Work Act 2009
As previously outlined in an earlier Kemp Strang alert
Part6-4B of the Fair Work Act allows an aggrieved worker
to make an application for an order to stop bullying to the Fair
Work Commission. In making an application, a worker must be able to
prove a number of elements, namely that the bullying occurred
"at work" and there is a risk that the worker will be
continued to be bullied at work.
In the present proceedings, three employees of DP World
Melbourne Ltd t/a DP World (DP World) lodged an
application for an order to stop bullying against DP World and the
MUA, claiming they had been bullied whist at work. DP World and the
MUA sought to have this application struck out, or limited on the
basis that some of the conduct complained of did not occur "at
work" and thereby the Commission's jurisdiction was not
The Commission looked at recent case law which interpreted
similar phrases for the purposes of other legislation such as the
Work Health and Safety Act 2011 (Cth), and examined the
phrase "at work" by looking at the common and every day
usage of the terms.
Temporal connection required
The Full Bench highlighted that the expression "while the
worker is at work" is intended to create a 'temporal
connection' between the bullying conduct and the applicant
worker being at work, and rejected the workers' argument that
"at work" means to have a "substantial connection to
work". They also noted that the "mischief" in which
Part 6-4B is aimed to remedy is workplace bullying and was
introduced to enable workers subjected to bullying to seek remedies
through an adjudicative process.
In doing so the Full Bench concluded that the term includes
circumstances where the alleged bullying occurred at a time when
the worker was "performing work" but noted that this was
not limited to the physical workplace. The term encompasses
situations where a worker is engaged in and is performing work,
regardless of the location or the time of the day. This extends to
include situations where the worker is engaged in some other
activity that is permitted or authorised by their employer or
principal such as during a meal break.
Case by case analysis
The Commission acknowledged that the best approach is to develop
the definition and its application over time on a case by case
basis, noting that while in most cases the definition of "at
work" will be clear cut it is likely cases will arise which
are more complex. The Full Bench used the example of a worker who
receives a phone call at home and outside ordinary work hours. The
Commission noted that whilst in most cases it is likely that such
circumstances this will be covered by the anti-bullying provisions,
situations like this will need to be dealt with individually.
Bullying and social media
The Full Bench also noted the challenges social media sites such
as Facebook may create if such sites are used to engage in bullying
behaviour. It was held that behaviour on sites such as Facebook is
not limited to the point when the comment is first posted, but
continues for as long as the comments remain on the site. Further a
worker does not have to be "at work" at the time the
comments were posted, rather it would be sufficient if the worker
accessed the comments later whilst "at work".
One year on – what have we learnt?
Since the introduction of the bullying provisions into the
Fair Work Act effective just over a year ago in January
2014 it is important to note that:
The Commission is not prevented from considering behaviour that
occurred prior to 1 January 2014 when the amendments were
The employer must be a "trading corporation" for the
jurisdiction to be enlivened;
The definition of reasonable management action is relatively
broad, thereby placing less restrictions on employers to discipline
and manage the performance of workers;
A worker need not physically be "at work" for
jurisdiction to be enlivened, rather they must be engaging in work
and performing work or some other activity authorised by their
employer. This however will be dealt with on a case by case
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
Kemp Strang has received acknowledgements for the quality of
our work in the most recent editions of Chambers & Partners,
Best Lawyers and IFLR1000.
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