[2014] FWCFB 9227

The attached document replaces the document previously issued with the above code on 19 December 2014.

By adding an appearance and amending a typographical error.

Annastasia Kyriakidis

Associate to Justice Ross, President

Dated 3 February 2015

Fair Work Act 2009
s.789FC - Application for an order to stop bullying

v

DP World Melbourne Limited T/A DP World; Maritime Union of Australia, The Victorian Branch and Others

Application for an FWC order to stop bullying - Strike-out application referred to the Full Bench - meaning of ‘at work’ within the Fair Work Act 2009 (Cth) - Strike-out application dismissed - Matter remitted to Deputy President Gostencnik.

Background

[1] Three employees of DP World Melbourne Limited (DP World) have each made an application for an order to stop bullying pursuant to s.789FC of the Fair Work Act 2009 (Cth) (the FW Act). The Applicants (Annette Coombe, Sharon Bowker and Stephen Zwarts) want the Fair Work Commission (the Commission) to make a finding and issue a statement to the effect that each of them has been bullied at work. In addition, various orders are sought against DP World and the Maritime Union of Australia (MUA).

[2] The Applicants have provided a Points of Claim document outlining the various alleged elements of unreasonable behaviour relied upon by them. This includes alleged conduct by individuals that are, or were, employees of DP World, members of the MUA and/or officials of the MUA.

[3] The Commission’s jurisdiction to make orders to stop bullying is only enlivened if, among other things, the Commission is satisfied that ‘the worker has been bullied at work’ (s.789FF(1)(b)(i)). DP World and the MUA (the Respondents) seek to have certain allegations in the Applicants’ Points of Claim struck out on the basis that the alleged bullying conduct did not occur ‘at work’, within the meaning of s.789FD.

[4] The points of claim document sets out a large number of alleged grounds for each application. The alleged conduct that the respondents contend should be struck out on the basis of not being “at work” includes the following:

● That an official of the MUA has failed to advise members of the union on site that certain allegations against one of the applicants is wrong and has taken no action to prevent two of the applicants being called a “lagger” and being ostracised in the workplace (particulars 35 and 36);

● That various Facebook posts have been made by employees of DP World who are members of the MUA, and by MUA officials, making various unreasonable and insulting allegations and comparisons of two of the applicants (particulars 65, 66, 67 and 68);

● That during the course of a union meeting (conducted in facilities made available to the MUA on the Melbourne waterfront) it was suggested by an MUA official that one of the applicants had acted wrongly and should now be ostracised from the group (particulars 71);

● That an official of the MUA during the course of a conversation with one of the applicants indicated in effect that he was unwilling or unable to protect them from harm or bullying conduct (particulars 76, 77);

● That an employee of DP World and a delegate of the MUA excluded two of the applicants from union activities and events that were relevant to them as female members of the union (particulars 78, 79);

● That an official of the MUA failed to provide representation and advice to two of the applicants (particulars 81);

● That an employee of DP World and a member of the MUA, in a phone call to another DP World employee, had described one of the applicants as a “scab” (particulars 84);

● That employees of DP World and members of the MUA made various threats to one or more of the applicants and encouraged other members not to associate with them (particulars 90, 91, 92); and

● That an official of the MUA in a telephone call to an applicant questioned why they had reported to management the existence of some graffiti, which was placed in the canteen and apparently directed to two of the applicants (particulars 97).

[5] We note that given the nature of the present proceedings, more detailed particulars about these and other allegations are not yet before the Commission. Some of the objections taken by the Respondents have been made on the basis that some of the alleged conduct may potentially have been “at work”, depending upon where and how it allegedly took place.

[6] The interpretation of the expression ‘bullied at work’ is in contention in these proceedings and given the general importance of this issue it has been referred to a Full Bench for determination. The Commonwealth and peak industry bodies (ACCI, Ai Group and ACTU) were invited to make submissions on the threshold question. ACCI and Ai Group made submissions in the proceedings.

The Legislative Provisions

[7] The relevant provisions are set out in Part 6-4B of the FW Act (ss 789FA-789FL). Part 6-4B was inserted into the FW Act by the Fair Work Amendment Act 2013 (Cth) (the 2013 Amendment Act).

[8] The scope of the Commission’s power to make orders to stop bullying is set out in s.789FF:

“(1) If:

(a) a worker has made an application under section 789FC; and
(b) the FWC is satisfied that:

(i) the worker has been bullied at work by an individual or a group of individuals; and
(ii) there is a risk that the worker will continue to be bullied at work by the individual or group;

then the FWC may make any order it considers appropriate (other than an order requiring payment of a pecuniary amount) to prevent the worker from being bullied at work by the individual or group.
(2) In considering the terms of an order, the FWC must take into account:

(a) if the FWC is aware of any final or interim outcomes arising out of an investigation into the matter that is being, or has been, undertaken by another person or body - those outcomes; and
(b) if the FWC is aware of any procedure available to the worker to resolve grievances or disputes - that procedure; and
(c) if the FWC is aware of any final or interim outcomes arising out of any procedure available to the worker to resolve grievances or disputes - those outcomes; and
(d) any matters that the FWC considers relevant.” (emphasis added)

[9] Section 789FC(1) sets out who may apply to the Commission for an order under s.789FF to prevent a worker from being bullied at work:

“s.789FC(1) A worker who reasonably believes he or she has been bullied at work may apply to the FWC for an order under section 789FF.” (emphasis added)

[10] Section 789FD deals with when a worker is ‘bullied at work’:

“(1) A worker is bullied at work if:

(a) while the worker is at work in a constitutionally-covered business:

(i) an individual; or
(ii) a group of individuals;

repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member; and
(b) that behaviour creates a risk to health and safety.

(2) To avoid doubt, subsection (1) does not apply to reasonable management action carried out in a reasonable manner.
(3) If a person conducts a business or undertaking (within the meaning of the Work Health and Safety Act 2011) and either:

(a) the person is:

(i) a constitutional corporation; or
(ii) the Commonwealth; or
(iii) a Commonwealth authority; or
(iv) a body corporate incorporated in a Territory; or

(b) the business or undertaking is conducted principally in a Territory or Commonwealth place;

then the business or undertaking is a constitutionally-covered business.” (emphasis added).

[11] The definition of ‘bullied at work’ is central to the operation of Part 6-4B. A worker may only apply to the Commission for an order under s.789FF if they reasonably believe that they have been ‘bullied at work’ (s.789FC(1)). The Commission’s power to make orders to stop bullying is only enlivened if, among other things, the Commission is satisfied that the applicant worker has been ‘bullied at work’ (s.789FF(1)(b)).

Submissions

[12] It was common ground that the first part of the expression ‘while the worker is at work’ creates a temporal connection between the bullying conduct and when the worker is ‘at work’. However, the parties and Intervenors advanced various interpretations of the phrase ‘at work’ in s.789FD(1)(a).

[13] The Applicants contend that conduct occurs ‘at work’ if the conduct has a substantial connection to work. It is submitted that conduct will have a substantial connection to work if it is conduct which could be the subject of a lawful and reasonable direction and could result in disciplinary action (that is, it is within the scope of employment). The Applicants’ contention is encapsulated in paragraphs 40-46 of their submission of 16 September 2014:

(40) There is nothing inherent in the expression “at work” which requires the Commission to limit its application to a particular physical workplace. The phrase “at work” describes an activity or state of affairs under which an individual is substantively connected to their employment or engagement. Being “at work” is plainly broader being at a purely physical “workplace”.
(41) As such, an approach which first establishes the scope of the particular employment or engagement is required. What is relevant to establishing that scope may differ depending on the characteristics of the particular employment or engagement.
(42) The Commission has previously recognised that the scope of conduct which materially affects a person’s employment and is legitimately conduct over which an employer may issue directions can extend well beyond the physical workplace. It is notorious, for example, that use of social media affecting work colleagues, in or outside the workplace, is conduct which is exposed to employer direction and over which employers are expected to have policies and exercise control. Given the permanency and visibility of such information amongst a tightly-knit workforce, this is unsurprising.
(43) Part 6-4B of the FW Act operates to prevent bullying at work by providing that orders may be issued to require that those with influence over work that is capable of being used to prevent particular conduct must use their influence to that end. This begs the question what influence the employer (DPW) and the trade union (MUA) can or do exercise over the workforce of which each of the Applicants is a part. A purposive interpretation is one which provides that conduct “while the worker is at work” includes conduct connected with the workplace and over which the MUA or DPW can or in fact do exercise control. ...
(45) In these circumstances, behaviour towards the applicants should be regarded as being directed towards them while they are respectively at work including where:

(a) It consists of offensive social media postings visible to work colleagues (which may in any case include being visible while each applicant is physically present in the workplace);
(b) It is conduct by work colleagues outside the workplace which is inconsistent with training undertaken by DPW of its employees and exercise of authority assumed by DPW over those out-of-hours activities;
(c) It is conduct by MUA officials or delegates in or outside the workplace under which they have assumed or sought to assume the function of controlling or dealing with workplace grievances; or
(d) It is conduct by MUA officials or delegates in or outside the workplace by which they have expressed disapproval or censure, or sought to have others express disapproval or censure, for “lagging”.

(46) Any other result would be irrational and unjust because:

(a) It would create a disparity between the scope of employment over which DPW is entitled to and does exercise control, and the extent to which an employee can identify (for Part 6-4B) that DPW has failed to exercise that control;
(b) It would permit continued conduct by MUA officials and delegates which is directed at preventing individuals from raising grievances associated with their employment by DPW, without permitting an affected employee to raise the reasonableness of the conduct under Part 6-4B; and
(c) It would create a disparity between the scope of other legislative protections against conduct that can create a risk to health and safety at work by unreasonable conduct, and the extent to which the Commission is provided with capacity to resolve those risks at an early stage under Part 6-4B.

[14] DP World, the MUA, ACCI and Ai Group (the Respondents and Intervenors) submit that conduct occurs while the worker is ‘at work’ if it occurs at any time that the worker is performing labour (including all necessary attendances involved in the performance of that labour) regardless of the time of day or location of such work.

[15] On the basis of this interpretation of ‘at work’ it is submitted that conduct will not fall within the scope of its preferred construction of ‘bullied at work’ if that conduct:

(a) is engaged in by person(s) who are not work colleagues of the Applicant and occurs outside the workplace;

(b) occurs outside the workplace at a time when the Applicant is not undertaking work activities; and/or

(c) occurs outside the workplace and is not related to the work being undertaken by the worker (for example, where the conduct is occurring in the context of the Applicant's union membership).

[16] It is submitted that this construction is supported by, among other things, the ordinary and grammatical meaning of the words used. It is submitted that “at” is a preposition which relevantly looks at the state of the individual: “denoting the time spent by someone”. A worker is only bullied at work within the meaning of section 789FD if the conduct occurs “while” (during the same time that) the worker “is” (attending or having the quality of being) “at” (the time spent by the worker) work.

[17] The Respondents and Intervenors also submitted that it would be inconsistent with the object of the FW Act and Part 6-4B to apply an interpretation to s.789FD which extended to conduct which occurs while the worker is not performing labour as the overall object of the FW Act is to provide a framework for ‘cooperative and productive workplace relations’ (emphasis added)

[18] The construction adopted by Fisher CJ in Meinhardt 1 is also said to support the construction of ‘bullied at work’ advanced by the Respondents and Intervenors. We return to that case shortly.

Consideration

[19] In the present proceedings only one aspect of the definition of when a worker is ‘bullied at work’ is in contention - the meaning of the expression ‘while the worker is at work’ in s.789FD(1)(a), though, of course, that expression must be considered in its legislative context. Before turning to that issue we propose to say something about the approach to be taken to the construction of such an expression.

[20] Ascertaining the legal meaning of a statutory provision necessarily begins with the ordinary grammatical meaning of the words used, having regard to their context and legislative purpose. Context includes the language of the FW Act as a whole, the existing state of the law, the mischief the provision was intended to remedy and any relevant legislative history. 2

[21] Section 15AA of the Acts Interpretation Act 1901 requires that a construction that would promote the purpose or object of the FW Act is to be preferred to one that would not promote that purpose or object (noting that s.40A of the FW Act provides that the Acts Interpretation Act 1901, as in force at 25 June 2009, applies to the FW Act). The purpose or object of the FW Act is to be taken into account even if the meaning of a provision is clear. When the purpose or object is brought into account an alternative interpretation may become apparent. If one interpretation does not promote the object or purpose of the FW Act, and another does, the latter interpretation is to be preferred. Of course, s.15AA requires us to construe the FW Act, not to rewrite it, in the light of its purpose. 3

[22] The literal meaning (or the ordinary grammatical meaning) of the words of a statutory provision may be displaced by the context and legislative purpose. As the majority observed in Project Blue Sky:

“... the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.” 4

[23] There are two particular features of the statutory provisions under consideration which bear upon their proper construction.

[24] First, these are remedial or beneficial provisions. Part 6-4B of the FW Act allows a worker who has been bullied at work to apply to the FWC for an order to stop the bullying. It is appropriate to characterise these provisions as remedial or beneficial. The provisions are analogous to legislative provisions dealing with aspects of occupational health and safety such as: reducing excessive hours of labour in factories; 5 ‘guarding’ against accidents,6 or furthering industrial safety7.

[25] The characterisation of these provisions as remedial or beneficial has implications for the approach to be taken to their interpretation. As the majority (per Gibbs CJ, Mason, Wilson and Dawson JJ) observed in Waugh v Kippen:

“... the court must proceed with its primary task of extracting the intention of the legislature from the fair meaning of words by which it has expressed that intention, remembering that it is a remedial measure passed for the protection of the worker. It should not be construed so strictly as to deprive the worker of the protection which Parliament intended he should have.” 8

[26] Any ambiguity is to be construed beneficially to give the fullest relief that a fair meaning of its language will allow, 9 provided that the interpretation adopted is ‘restrained within the confines of the actual language employed that is fairly open on the words used.’10 As their Honours Brennan CJ and McHugh J put it in IW v City of Perth:11

“... beneficial and remedial legislation, like the [Equal Opportunity] Act, is to be given a liberal construction. It is to be given ‘a fair, large and liberal’ interpretation rather than one which is ‘literal or technical’. Nevertheless, the task remains one of statutory construction. Although a provision of the Act must be given a liberal and beneficial construction, a court or tribunal is not at liberty to give it a construction that is unreasonable or unnatural.”

[27] If the words to be construed admit only one outcome then that is the meaning to be attributed to the words. However if more than one interpretation is available or there is uncertainty as to the meaning of the words, such that the construction of the legislation presents a choice, then a beneficial interpretation may be adopted.

[28] The second feature of the expression ‘while the worker is at work’ is that these words are contained within the definition of the term ‘bullied at work’. The significance of definition provisions and the approach to be taken to their construction is considered by McHugh J in Allianz Australia Insurance Limited v GSF Australia Pty Ltd: 12

“Except in rare cases, definitions are not intended to enact substantive rules of law. Their function is to aid the construction of those substantive enactments that contain the defined term or terms. Moreover, the meaning of the definition depends on the context and object of the substantive enactment. As I pointed out in Kelly v The Queen:  13

"[T]he function of a definition is not to enact substantive law. It is to provide aid in construing the statute. Nothing is more likely to defeat the intention of the legislature than to give a definition a narrow, literal meaning and then use that meaning to negate the evident policy or purpose of a substantive enactment. ... [O]nce ... the definition applies, ... the only proper ... course is to read the words of the definition into the substantive enactment and then construe the substantive enactment - in its extended or confined sense - in its context and bearing in mind its purpose and the mischief that it was designed to overcome. To construe the definition before its text has been inserted into the fabric of the substantive enactment invites error as to the meaning of the substantive enactment. ... [T]he true purpose of an interpretation or definition clause [is that it] shortens, but is part of, the text of the substantive enactment to which it applies."

In this case, therefore, the definition of "injury" is to be read into and applied in respect of
s 69(1) of the Act. When that is done, the sub-section, with that term defined, must be construed in the context in which it appears and in light of the objects of that Part and the Act as a whole.”

[29] We now turn to consider the legal meaning of the expression ‘while the worker is at work’, in s.789FD(1)(a).

[30] It may be observed at the outset that the focal point of the definition is on ‘the worker’, that is on the applicant for an order to stop bullying (who for convenience may be referred to as the applicant). In this context ‘worker’ has the same meaning as in the Work Health and Safety Act 2011, but does not include a member of the Defence Force (see s.789FC(2)). Broadly speaking, this means that a ‘worker’ is an individual who carries out work in any capacity for a person conducting a business or undertaking, including as an employee; a contractor or subcontractor; an outworker; an apprentice or trainee; a student gaining work experience, or a volunteer.

[31] It is important to appreciate that the definition of ‘bullied at work’ includes the requirement that an individual or group of individuals ‘repeatedly behaves unreasonably towards the worker [ie the applicant], or a group of workers of which the worker is a member’ (see s.789FD(a)(i) and (ii)). The individuals engaging in the unreasonable behaviour need not be workers, for example they could be customers of the business or undertaking in which the applicant works. Nor do the relevant statutory provisions contain any requirement for these individual(s) to be ‘at work’ at the time they engage in the unreasonable behaviour which the applicant contends constitutes bullying.

[32] The first part of the expression ‘while the worker is at work’ presents little difficulty. These words are plainly intended to create a temporal connection between the bullying conduct (ie. the repeated unreasonable behaviour directed at the worker: s.789FD(1)(a)) and the worker being ‘at work’. In the context of s.789FD(1)(a) the word ‘while’ is used as a conjunction, meaning ‘during the time that’.

[33] The construction we have adopted of the first part of the definition is consistent with the ordinary meaning of the words used and the context. It is also consistent with the legislative purpose.

[34] The Revised Explanatory Memorandum to the 2013 Fair Work Amendment Bill makes it clear that the enactment of Part 6-4B was part of the Government’s response to the report of the House of Representatives Standing Committee on Education and Employment Inquiry titled Workplace Bullying ‘We just want it to stop’ (the Workplace Bullying Report). 14 Paragraph 86 of the Explanatory Memorandum makes specific mention of recommendations 1 and 23 of the Workplace Bullying Report:

Recommendation 1
The Committee recommends that the Commonwealth Government promote national adoption of the following definition: workplace bullying is repeated, unreasonable behaviour directed towards a worker or group of workers, that creates a risk to health and safety.

Recommendation 23
The Committee recommends that the Commonwealth Government implement arrangements that would allow an individual right of recourse for people who are targeted by workplace bullying to seek remedies through an adjudicative process.

[35] It is apparent that the legislative purpose in enacting Part 6-4B was to give effect to these recommendations by providing an individual right of recourse for workers targeted by workplace bullying to seek remedies through an adjudicative process.

[36] It is apparent from the extrinsic material that the ‘mischief’ to which Part 6-4B is directed is workplace bullying. The scope of the inquiry which resulted in the Workplace Bullying Report was limited to ‘bullying at work’. 15 Paragraphs [1.89]-[1.93] of that report state:

1.89 The Committee’s terms of reference were to focus on bullying in the workplace, and there are specific legal obligations that arise with respect to bullying in a workplace to focus on.

1.90 The following areas of law seek to regulate the behaviours associated with workplace bullying:

• work health and safety;



• industrial relations;



• criminal law;



• anti-discrimination law; and



• workers’ compensation schemes.




1.91 The intersecting responsibilities of federal and state or territory regulation add layers of complexity. Navigating through the matrix of regulations can be overwhelmingly complex for workers and employers alike. ...

1.93 The ‘gap’ identified here is the absence of specific (and uniform) regulation of workplace bullying that does not ‘hinge off’ the areas of law identified above. Indeed, workplace bullying manifests in vastly different ways; it is the diversity of circumstances that, despite the variety of regulation, appear to lead many bullying incidents to fall between the areas of regulation.

[37] An interpretation of the first part of the expression ‘while the worker is at work’ which creates a temporal connection between the bullying conduct and when the worker is ‘at work’ is consistent with the legislative purpose and the mischief to which these provisions are directed, that is workplace bullying. Such a construction also sits conformably within the FW Act, a statute primarily concerned with workplace relations.

[38] The more challenging task is the legal meaning of the phrase ‘at work’ in the context of s.789FD(1).

[39] Some assistance, albeit limited, can be obtained from the meaning attributed to similar expressions in other statutory contexts. Section 19 of the Work Health and Safety Act 2011 (Cth) includes the expression ‘while the workers are at work’ in the context of setting the primary duty of care of a person conducting a business or undertaking:

“(1) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of:

(a) workers engaged, or caused to be engaged by the person; and
(b) workers whose activities in carrying out work are influenced or directed by the person;
while the workers are at work in the business or undertaking.” (emphasis added)

[40] The Explanatory Memorandum to the Work Health and Safety Bill 2011 sheds some light on the meaning of the expression ‘while the workers are at work’ in s.19:

“Primary duty of care not limited to physical ‘workplaces’
22. The primary duty of care is tied to the work activities wherever they occur and is not limited to the confines of a physical workplace.” (emphasis added)

[41] The phrase ‘at work’ was also used in s.15(1) of the now repealed Occupational Health and Safety Act 1983 (NSW) (the 1983 OH & S Act) in the context of a description of the primary duty of employers:

“(1) Every employer shall ensure the health, safety and welfare at work of all his employees.” (emphasis added)

[42] In Inspector Richard Charles Clarke v WL Meinhardt and Partners Pty Limited (Meinhardt) (Matter Nos. 1212 and 1213 of 1990) Fisher CJ made the following observation about the phrase ‘at work’ in s.15(1):

“Mr Gee stressed the use of the term ‘place of work’ as defined. He referred particularly to its use in S.15(2)(d) and the duties limited by the subsection to ‘any place of work under the employer's control’.

His submission was, that although the two employees, Mssrs Young and Flint were on site for a work related purpose, namely to check timber packing in the facade retention structure and to ensure that it remained properly in place, that it should not be considered in the terms of the statute that these employees were at their place of work. The presence of Mssrs Young and Flint on the building site did not produce the result that the absolute requirement to ensure safety contained in s.15 of the Act fell upon their employer. ‘There was not necessarily even prima facie evidence that the defendant company failed to ensure something. All that the Commission knew is that the defendant engineered a facade support and the wall fell down.’ ...

Mr Gee's submission was that the representations ‘place of work’ was their office.

I consider this specialised Act should be interpreted in industrial terms as a practical document applying to the customary organisation and industrial circumstance of the building and construction industry, of which Parliament would have been aware.

Today, working on building and construction sites, are many classes of employees, manual workers, tradesmen, contractors, sub-contractors, skilled operators, engineers, consultants and professionals. They come in many categories of contractor, sub-contractor, and manufacture and erection contractors. Commonly they may work on one or more sites a day. Even this facade retention contract required four separate firms (see par.3. of the Statement of Facts) and many classes of labour for its completion.

In the sense advanced by Mr Gee, their ‘place of work’, even though they may see it for only a few minutes a day, might be an office, a builders yard, a warehouse store or factory. Mr Gee's submission would on many sites, disqualify at any one time the greater part of the work force from the concept of being ‘at work’ while attending the site to work.

I consider the phrase ‘at work’ in s.15(1) of the Act has temporal connotations. It applies equally to all kinds of work. On a building site it would include entering, moving about and leaving a site, as well as here, inspection or reinspection, maintenance and periodic checks. Whilst this work was being performed the employer is subject to the duties cast upon him by the Act.”

[43] These observations were applied in Corrado Rech v FM Hire Pty Limited 16(Rech) in which Hungerford J concluded that there was no relevant breach of the 1983 OH & S Act:

“Why Mr Kalkan was at the Flemington Markets and driving a forklift at least one hour earlier than he might otherwise have been expected to do in the course of performing his duties remained unanswered on the evidence. I am simply unable to be satisfied beyond reasonable doubt that in a temporal and purposive sense he was relevantly ‘at work’; whether he was engaged in his own endeavours at least can be inferred as a possibility. That being so, it must follow, in my view, that it has not been established ... that the failure to relevantly ensure Mr Kalkan’s health and safety occurred when he was ‘at work’.” 17

[44] The observations in Meinhardt and Rech are consistent with meaning we have attributed to the first part of the expression ‘while the worker is at work’, that is it creates a temporal connection between the bullying conduct and the applicant being ‘at work’.

[45] As part of a definition the words ‘at work’ should be construed conformably with the evident policy or purpose of the substantive enactment and the mischief that it was designed to overcome. As we have seen the mischief to which Part 6-4B is directed is workplace bullying. Seen in that context the words ‘at work’ in the expression ‘while the worker is at work’ (in s.789FD(1)(a)) are words of limitation which are intended to confine the operation of the substantive provisions.

[46] We reject the proposition, advanced on behalf of the Applicants, that conduct occurs ‘at work’ if it has ‘a substantial connection to work’. We note that counsel for the Applicants put the proposition even more broadly during the course of oral argument:

“Because the ‘at work’, as we contend, is the condition of being engaged by a constitutional corporation in some capacity, be it employment or other, in its business. That person is engaged in that business, even if they are asleep. This is a problem with, again, language. Somebody says to you, ‘Where do you work’, you say perhaps you work at the Fair Work Commission, that doesn't stop when you're asleep.” 18

[47] The difficulty with the submission put on behalf of the Applicants is there is no persuasive argument linking the definition proffered with the actual language of s.789FD(1)(a)). The submission advanced simply seeks to recast the statutory language into a more palatable form. We can see no warrant for such an approach. The adoption of the expression ‘while the worker is at work’ was clearly intended to confine the operation of the substantive provisions of Part 6-4B. The legislature could have chosen a more expansive definition, but chose not to do so (eg ‘in his or her employment’ and ‘in the person’s employment’ in FW Act s.342(1); or ‘employment’ in Age Discrimination Act 2004 (Cth) s.18, Disability Discrimination Act 1992 (Cth) s.15, Racial Discrimination Act 1975 (Cth) s.15 and Sex Discrimination Act 1984 (Cth) s.14; or ‘workplace’ in Sex Discrimination Act 1984 (Cth) s.28B).

[48] We have concluded that the legal meaning of the expression ‘while the worker is at work’ certainly encompasses the circumstance in which the alleged bullying conduct (ie the repeated unreasonable behaviour) occurs at a time when the worker is ‘performing work’. Further, being ‘at work’ is not limited to the confines of a physical workplace. A worker will be ‘at work’ at any time the worker performs work, regardless of his or her location or the time of day. As we have mentioned, the focal point of the definition is on the worker (ie the applicant). The individual(s) who engage in the unreasonable behaviour towards the worker need not be ‘at work’ at the time they engage in that behaviour.

[49] While a worker performing work will be ‘at work’ that is not an exhaustive exposition of the circumstances in which a worker may be held to be at work within the meaning of s.789FD(1)(a). For example, it was common ground at the hearing of this matter that a worker will be ‘at work’ while on an authorised meal break at the workplace and we agree with that proposition. But while a worker is on such a meal break he or she is not performing work. Indeed by definition they are on a break from the performance of work. It is unnecessary for us to determine whether the provisions apply in circumstances where a meal break is taken outside the workplace.

[50] In our view an approach which equates the meaning of ‘at work’ to the performance of work is inapt to encompass the range of circumstances in which a worker may be said to be ‘at work’.

[51] It seems to us that the concept of being ‘at work’ encompasses 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 their employer, or in the case of a contractor their principal (such as being on a meal break or accessing social media while performing work).

[52] As noted in the Workplace Bullying Report, workplace bullying manifests itself in a diversity of circumstances and it is appropriate that we take a cautious approach to delineating the boundaries of what is meant by the words ‘at work’ in s.789FD(1)(a). It is preferable that the approach to this issue develop over time, on a case by case basis.

[53] In most instances the practical application of the definition of ‘bullied at work’ in s.789FD will present little difficulty. But there will undoubtedly be cases which will be more complex, some of which were canvassed during the course of oral argument. For example, a worker receives a phone call from their supervisor about work related matters, while at home and outside their usual working hours. Is the worker ‘at work’ when he or she engages in such a conversation? In most cases the answer will be yes, but it will depend on the context, including custom and practice, and the nature of the worker’s contract.

[54] The use of social media to engage in bullying behaviour creates particular challenges. Conceptually there is little doubt that using social media to repeatedly behave unreasonably towards a worker constitutes bullying behaviour. But how does the definition of ‘bullied at work’ apply to such behaviour? For example, say the bullying behaviour consisted of a series of facebook posts. There is no requirement for the person who made the posts (the alleged bully) to be ‘at work’ at the time the posts were made, but what about the worker to whom they are directed?

[55] During the course of oral argument counsel for the MUA submitted that the worker would have to be ‘at work’ at the time the facebook posts were made. 19 We reject this submission. The relevant behaviour is not limited to the point in time when the comments are first posted on facebook. The behaviour continues for as long as the comments remain on facebook. It follows that the worker need not be ‘at work’ at the time the comments are posted, it would suffice if they accessed the comments later while ‘at work’, subject to the comment we make at paragraph 51 above.

[56] We acknowledge that the meaning we have ascribed to s.789FD may give rise to some arbitrary results. A worker may only access comments on social media which constitute unreasonable behaviour (with the meaning of s.789FD(1)(a)) at a time when they are not ‘at work’ and the behaviour will not fall within the scope of Part 6-4B. But it seems to us that such a consequence necessarily follows from the fact that the legislature has adopted a definition which is intended to confine the operation of the substantive provisions.

[57] An additional consideration arises in the context of unreasonable behaviour through the medium of social media. What is the position in respect of facebook posts which have no relevant workplace connection, eg posts from a former partner who has no workplace connection with ‘the worker’. If such posts constitute unreasonable behaviour and they are read by the worker while he or she is ‘at work’, do they fall within the scope of the definition in s.789FD (assuming that they also create a risk to health and safety: s.789FD(1)(b))? We doubt that such an outcome was intended by the legislature having regard to the legislative context and the language of s.789FD. As this issue does not directly arise in the present matter it is unnecessary for us to express a concluded view, but it is illustrative of the sort of practical issues which may arise in the application of the definition of ‘bullied at work’ in s.789FD.

[58] We do not think it appropriate to canvass the practical application of the definition of bullied at work beyond what we have already said. The application of the meaning of ‘at work’ in a particular case will depend on all the circumstances and it is appropriate that the jurisprudence develop on a case by case basis. We now turn to deal with the Respondents’ strike-out application.

[59] The Respondents seek to have certain allegations in the Applicants’ Points of Claim struck out on the basis that the alleged bullying conduct did not occur ‘at work’ within the meaning of s.789FD. We note that it is not contended that there is no jurisdiction to ground an application in this matter, rather it is contended that the scope of some of the allegations should be confined such that those outside the scope of s.789FD are struck out.

[60] The Commission is not a court of pleading and acceding to such a strike out application introduces a level of legal technicality which is inimicable to the manner in which the Commission is to perform its functions and exercise its powers. The following provisions of the FW Act are relevant in this regard.

[61] Section 577 directs:

FWC must perform its functions and exercise its powers in a manner that:

(a) is fair and just; and

(b) is quick, informal and avoids unnecessary technicalities; and

(c) is open and transparent; and

(d) promotes harmonious and cooperative workplace relations.

[62] Section 590(1) provides:

FWC may, except as provided by this Act, inform itself in relation to any matter before it in such manner as it considers appropriate.

[63] Section 591 provides:

591 FWC is not bound by the rules of evidence and procedure in relation to a matter before it (whether or not FWC holds a hearing in relation to the matter).

[64] In Coal & Allied Mining Services Pty Ltd v Lawler 20 (C & A Mining Services) Buchanan J (with whom Marshall and Cowdroy JJ agreed) considered these statutory provisions in the context of unfair dismissal proceedings and then made the following observation (at [25]):

“It is not inappropriate to say that the members of [FWC] have a statutory mandate to get to the heart of matters as directly and effectively as possible:”

[65] In our view his Honour’s observations are apposite to the exercise of the Commission’s powers in Part 6-4B.

[66] Striking out the impugned claims may be said to enable the matter to be dealt with more efficiently by confining the evidence to matters clearly within the Commission’s jurisdiction. The difficulty with such a proposition is that the provision of further particulars, and ultimately the evidence in support of the allegations, may well bring some of the impugned claims within the scope of Part 6-4B. Some of the impugned claims may also provide relevant context and background to other allegations which are plainly within the scope of Part 6-4B.

[67] Rather than striking out certain claims at this preliminary stage we think the more appropriate course is to remit the matter to the member at first instance, Deputy President Gostencnik. It will then be a matter for the Deputy President to hear evidence about the alleged conduct and to determine the extent, if any, that the proceedings are to be confined, and to deal with any challenges to the relevance of certain evidence. For the reasons given the strike out application is dismissed.

PRESIDENT

Appearances:

M. Rinaldi & T. Lange for the Applicants

R. O’Neill for DP World Melbourne Limited

R. Clancy for Australian Chamber of Commerce & Industry

D. Miller for Australian Industry Group

Y. Bakri for Maritime Union of Australia & others

Hearing details:

Melbourne

2014.

November 20

 1   Inspector Richard Charles Clarke v WL Meinhardt and Partners Pty Limited (Meinhardt) (Matter Nos. 1212 and 1213 of 1990)

 2   See Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27 at [47]; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69]

 3   Mills v Meeking (1990) 169 CLR 214 at 235 per Dawson J; R v L (1994) 49 FCR 534 at 538

 4   (1998) 194 CLR 355 at [78] per McHugh, Gummow, Kirby and Hayne JJ). Also see Taylor v The Owners - Strata Plan No 11564 [2014] HCA 9 at [65]-[66]

 5   Armitage v Stewart (1907) 7 SR (NSW) 645 at 646

 6   Rice v Hesley (1914) 19 CLR 19 at 22 per Isaacs J

 7   Waugh v Kippen (1986) 160 CLR 156 at 164

 8   Ibid

 9   Bull v Attorney General (NSW) (1913) 17 CLR 370 at 384

 10   See Khoury v Government Insurance Office (NSW) (1984) 165 CLR 622 at 638; and ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18 at [29] per French CJ, Crennan, Kiefel and Keane JJ

 11   (1997) 191 CLR 1 at 12

 12   [2005] HCA 26 at [12]-[13]

 13   [2004] HCA 12; (2004) 78 ALJR 538 at 559-560 [103]; [2004] HCA 12; 205 ALR 274 at 302

 14   See paragraphs 86 and 108 of the Explanatory Memorandum

 15   Workplace Bullying Report, paragraph [1.88]

 16   Matter No. CT1377 of 1995; 31 August 1998 at p 41 per Hungerford J; Corrado Rech v Nomel Pty. Limited [1998] NSWIRComm 463 (31 August 1998)

 17   Ibid at p 43

 18   Transcript at PN958

 19   Transcript at PN720

 20   [2011] FCAFC 54

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