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Don’t bully a board member – they could be a worker!

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This article was written by Christina Muthurajah

The Fair Work Commission has decided that its anti-bullying jurisdiction extends to alleged bullying of a Chairperson of a board.  This represents a broad interpretation of the meaning of a "worker" under the Fair Work Act 2009 (FW Act).

Implications for employers

While robust discussion and heated exchanges may be common place in the boardroom, organisations should be aware that board members may now be entitled to bring bullying claims against each other.  

Organisations should consider reviewing their policies and codes of conduct, and take steps to ensure that its board members are aware of their obligations towards each other when undertaking these roles.

Background 

The applicant, Mr Adamson, made an application for a stop bullying order under section 789FC of the FW Act. Mr Adamson was the Chairperson of the executive board of the Anangu Pitjantnatjara Yankunytjatjara (APY Board). The APY Board is the governing board of Aboriginal lands in the remote north west of South Australia that is established under the Anangu Pitjantnatjara Yankunytjatjara Land Rights Act 1981 (SA) (APY Act). The APY Act also establishes APY Inc. as a corporate entity.

The applicant made a number of allegations about the conduct of the General Manager and the Deputy Chairperson of the APY Board. The General Manager, Deputy Chairperson and APY Inc. were all named as respondents to the application. 

The respondents to the application strongly denied the allegations of bullying by the applicant, and argued that Mr Adamson was not a "worker" within the meaning of the FW Act and was therefore not entitled to the relief sought under section 789FF of the FW Act. 

The term "worker" is defined in section 789FC of the FW Act to have the same meaning as in the Federal Work Health and Safety Act 2011 (WHS Act).  It is therefore not limited to employees, but can include contractors and volunteers.  The respondents nevertheless argued that the applicant fell outside the definition of "worker" under section 7(1) of the WHS Act.

Decision

Commissioner Hampton decided that a broad definition of the term "worker" should be applied. 

The Commissioner stated that although the applicant may not have been a worker in the traditional sense, the context in which the term "worker" was definded in the WHS Act was different from the traditional distinction between a manager/employer on the one hand, and a worker on the other hand. The applicant did serve the organisation and the APY community and undertook "work" in that capacity. 

The Commissioner noted that the role of Chairperson was specifically recognised under the APY Act and the remuneration paid to the Chairperson was well beyond the sitting fees for general members and exceeded cost reimbursement. Further, PAYG taxation was deducted from the Chairperson's remuneration. 
It was not decisive that the role of Chairperson was not expressly identified as one of the categories of workers in section 7 of the WHS Act, as the categories mentioned in section 7 were non-exhaustive examples.  The role of the applicant was such that he could be regarded as a "worker".

Section 789FF of the Act requires that there be a "future risk" of bullying for an order to be made. Given the applicant was no longer a member of the APY Board at the time the application was heard, no future risk existed. On that basis the application could not succeed and was dismissed by the Commissioner.


Trevor Yawirki Adamson [2017] FWC 1976 (19 May 2017) 

 
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