It is not unusual for egos to be tested and tempers tried when board members, equally passionate about the best interests of the organisation, engage in various tactics and strategies to put across their point of view.
But, if these tactics and strategies are perceived as bullying, does a member of an executive committee have the right to make an application under the Fair Work Act 2009(Cth) (“the Act”) for a stop bullying order?
This question arose in Trevor Yawirki Adamson [2017] FWC 1976, and the answer is “yes”.
Background
The applicant was the chairperson of a corporation (Anangu Pitjantjatjara Yankunytjatjara Inc) established under the Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA) (“APY Act”) alleged that the other board members had:
- refused to deal with him, and disrespected his wishes;
- interfered with the conduct of meetings;
- orchestrated events to prevent a quorum at meetings;
- prevented the applicant from accessing board minutes; and
- defamed the applicant and other board members.
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 the 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, 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 the applicant was not a “worker” as defined by the Act and, consequently lacked the capacity to make the application. They argued 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;
- the applicant was an elected member of the executive board; and
- 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.
The Fair Work Commission rejected these arguments, finding on the facts, no suggestion that Anangu Pitjantjatjara Yankunytjatjara Inc was not a person conducting a business or undertaking nor was the applicant in his capacity as chairperson a volunteer within the meaning of the WHS Act.
The following matters were relevant in the Fair Work Commission’s determination:
- the applicant, 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 the applicant’s role did not directly fit into one of the nominated categories of the WHS Act was not decisive nor was the list of categories intended to be exhaustive; and
- 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 points to note
Whether certain behaviour by board or committee members will constitute boardroom 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.
Organisations 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.