12 Jul Anti-Bullying Orders may extend to Board Members
A recent Fair Work Commission (FWC) decision has ruled that company directors are considered ‘workers’ for the purpose of the anti-bullying laws under the Fair Work Act 2009 (Cth). The implication of this decision is that the FWC now has the ability to intervene in boardroom ‘tussles’ where it is found that ‘bullying and harassment’ has occurred.
In the case of Trevor Yawirki Adamson  FWC 1976, Mr Adamson applied for a ‘stop-bullying order’ under the Act. He made this application in his capacity of Chair of the Board of the Anangu Pitjantjatjara Yankunytjatjara Inc. In particular, Mr Adamson made claims of bullying against the General Manager Richard King and the Deputy Chair of the Board Bernard Singer.
As part of his claim, Mr Adamson alleged that Mr King and Mr Singer had refused to deal with him, interfered in his conduct of board meetings, prevented the exercise of his powers, orchestrated events to prevent quorums, and defamed him. The Respondents argued that Mr Adamson was not a ‘worker’ under the Act and therefore legally prohibited from lodging an application.
The FWC found that Mr Adamson’s duties and functions as a Chairperson constituted ‘work’ for the organisation. The central question related to whether Mr Adamson was ‘carrying out work in any capacity’. This was further supported by the fact Mr Adamson received payment for his role. As such, the FWC determined that the correct interpretation of ‘worker’ extended to activities performed by Directors and Board members. Despite this, the FWC dismissed Mr Adamson’s application on the basis that he had not been re-elected as Chairperson and therefore there was no risk of being bullied in the future.
The decision clearly indicates that directors and board members are covered under the anti-bullying jurisdiction. A ‘stop-bullying’ order can be sought where there is evidence of repeated, unreasonable behaviours which create a risk to work health and safety. This decision raises additional risks at a Board level, particularly where there may exist robust disagreement or conflict regarding particular issues.
A further implication is that the FWC may issue Orders regarding the manner in which Directors and Board members communicate. The issue of a stop-bullying order may also have significant reputational consequences for an organisation.
It is vital that organisations maintain effective governance policies and procedures, as well as an awareness of the anti-bullying provisions. Pinnacle HR provides comprehensive training in board governance, at both an introductory and advanced level.
It is also important that employers have up to date policies and procedures in place with regard to bullying and ensure that managers are trained or provided with refresher training sessions, and are aware of their responsibilities.