Boardrooms are often the place of heated debate over a range of matters affecting the operations of an organisation. Vigorous discussion that airs all possibilities can sometimes be beneficial (and necessary) when making critical decisions which will ultimately determine the future direction of a corporation.
It is not unusual for egos to be tested and tempers tried when board members, equally passionate about the best interests of an undertaking, engage in tactics, strategies and politics to put across their point of view.
But, if strategic ‘play’ is perceived as bullying, does a member of an executive committee have recourse to make an application under the Fair Work Act 2009 (Cth) (the Act)?
The question arose in Trevor Yawirki Adamson [2017] FWC 1976 and the answer is ‘yes’. The Fair Work Commission took a broad view of the term ‘worker’ to allow a board member to bring an application for a stop bullying order.
The case sends a clear message to corporations that certain antics in the boardroom could potentially be perceived as bullying, leading to actionable claims.
This is general information only and you should obtain professional advice tailored to your specific circumstances.
Background
Anangu Pitjantjatjara Yankunytjatjara Inc (APY Inc) is a corporate entity established under the Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA) which vests title of approximately 100,000 square kilometres of land in South Australia to the Anangu Pitjantjatjara Yankunytjatjara people.
The Executive Board of APY Inc consists of elected members and Mr Adamson was Chairperson at the time of applying to the Fair Work Commission for a stop bullying order. Broadly, Mr Adamson’s application raised allegations of other board members:
- refusing to deal with, and disrespecting Mr Adamson’s wishes;
- interfering with the conduct of meetings;
- orchestrating events to prevent a quorum at meetings;
- preventing Mr Adamson from accessing board minutes; and
- defaming Mr Adamson and other board members.
At the time of determining the matter, Mr Adamson (after failing to be re-elected) was no longer Chairperson and ultimately, the Commission did not make a finding on the merits of the anti-bullying allegations.
The case therefore turned on jurisdictional matters, namely whether Mr Adamson had standing as a ‘worker’ to bring an application for an anti-bullying order.
Anti-bullying legislation
The Act provides that upon application of a ‘worker’, the Fair Work Commission has power to make any orders considered appropriate to prevent a worker from being bullied at work by an individual or group of individuals.
In making an order, the Commission must be satisfied that bullying has occurred at work and there is a risk that the applicant will continue to be bullied. The order may apply to the employer, an individual or group of employers, co-workers or visitors to the workplace.
The focus is not to compensate the applicant, but to resolve the matter so that working conditions and relationships are restored.
Jurisdictional issues
The Act defines a ‘worker’ by reference to the Work Health and Safety Act 2011 (Cth) (WHS Act). This broadly includes a person who carries out work in any capacity for a person conducting a business or undertaking (PCBU), including as an employee, contractor, subcontractor, outworker, apprentice, trainee, student gaining work experience, or a volunteer, except a person volunteering with a wholly volunteer association.
The respondents claimed that Mr Adamson was not a ‘worker’ as defined by the Act and, consequently lacked the capacity to make the application. They argued (amongst other matters) that:
- the term ‘worker’ is not generally applied to a director or member of a governing board or an organisation unless the person is subject to an employment contract;
- Mr Adamson was an elected member of the executive board which did not fit within specific categories of the WHS Act;
- the director of a company or member of a board of an association or statutory body was not specifically included in the categories of ‘worker’ set out in the WHS Act.
Commissioner Hampton rejected these arguments, finding on the facts, no suggestion that APY Inc was not a PCBU nor was Mr Adamson in his capacity as Chairperson a volunteer within the meaning of the WHS Act.
The following matters were relevant in Commissioner Hampton’s determination:
- Mr Adamson, as Chairperson had a defined role specified in the provisions of the APY Act and was paid a significant amount on a weekly basis for carrying out the duties of Chairperson;
- The fact that Mr Adamson’s role did not directly fit into one of the nominated categories of the WHS Act was not decisive nor, on reading the explanatory memoranda, was the list of categories meant to be exhaustive;
- when determining who is a ‘worker’ for the purposes of the Act, a broad approach should be taken that acknowledges that work health and safety risks ‘do not discriminate based on legal relationships or whether a person is paid’.
Key take outs from the case
Anti-bullying legislation is intended to apply broadly.
Whether certain antics in your boardroom will constitute bullying depends on the circumstances of the case. However, the Fair Work Commission has now confirmed that a board member is considered a ‘worker’ and may bring an application for a stop bullying order.
Board members and companies should implement policies and codes of conduct to be used as models for appropriate behaviour in the boardroom. Policies should include mechanisms for resolving disputes such as mediation with regular training provided to board members with respect to bullying and other work health and safety obligations.
If you or someone you know wants more information or needs help or advice, please contact us on (03) 9600 2768 or email [email protected].