Companies' top people can seek anti-bullying orders against each other
A landmark ruling by the Fair Work Commission now enables companies’ board members and chairpersons to seek anti-bullying orders against each other.
This is of enormous significance to a multitude of SA companies, large and small, where shareholders work in a business, perhaps all are family members, and where directors and major shareholders may well be one and the same. In some instances, bullying and intimidation is often part of the Board meeting rituals.
Macks Advisory sees issues arising in Commissioner Peter Hampton’s decision for distractions that may seriously affect day-to-day functions of boards, especially those of companies where there’s an increasing tendency to replace poorly performing family members with talented outsiders.
Such situations can inevitably highlight resentment that triggers bullying and consequent reaction that may now relate to the Commissioner’s new ruling.
Origin of the landmark case
The governing board of SA’s remote Aboriginal Lands’ Anangu Pitjantjatjara Yankunytjatjara Inc (APY), and its chairperson Mr Trevor Anderson, complained to the Fair Work Commission (FWC) that APY’s general manager Mr Richard King and deputy chairperson Mr Bernard Singer were bullying them.
Mr Adamson claimed Mr King and Mr Singer were refusing to deal with him, were “disrespecting his wishes”, were “orchestrating events” to prevent quorums being formed for meetings, were defaming him and denying him access to minutes.
Not only did Messrs King and Singer strongly reject these allegations but called on Commissioner Peter Hampton to throw out the claim because Mr Adamson was not a “worker” as defined in the Fair Work Act, and his claim was therefore not a matter for the Commission’s jurisdiction,
The Commissioner’s decision
Mr Hampton said the Act adopted “a very wide approach” to its definition of a “worker”. He stated, “the undertaking of work for a person conducting a business or undertaking” was sufficient to qualify someone doing this as a “worker”.
The Commissioner went on: “Further, a broad approach to the definition recognises that workplace health and safety hazards and risks do not discriminate based on legal relationships, or whether a person is paid.”
Accordingly, Mr Hampton found that Mr Adamson’s activities as chairperson represented “work” for APY Inc. The finding was reinforced, The Commissioner said, by the fact that Mr Adamson was paid significant remuneration for his role.
The Commissioner added that while Mr Adamson might not be considered a worker in the traditional sense - workers generally being people working directly under managers or employers - he was nonetheless a worker, albeit in a different context.
Nevertheless, Mr Hampton dismissed Mr Adamson’s application to have anti-bullying orders made against Messrs King and Singer, because since making the allegations against them, the applicant had not been re-elected as APY Inc’s chairperson and was therefore not at “future risk” of being bullied at work.
Case’s wider significance
This broad-view finding is the first indication that company board members can be regarded as workers under the Fair Work Act and accordingly can apply to have anti-bullying laws made against each other. But it’s a finding with much greater significance than this.
In deciding that board members of a business or organisation are “workers”, Commissioner Hampton is in effect saying the Fair Work Act may also regard executives of businesses and institutions as “workers”. That being so, he would appear to have opened possibilities for executives to seek anti-bullying orders against each other. Such orders could indeed be sought one against the other by peer-to-peer workers at all staff levels.
Because of the decision in the APY Inc matter, Macks Advisory believes that henceforth there could be disruptions to businesses and organisations caused by similar cases that may prove costly in a number of ways.
Subsequent hearings before the Commissioner of applications for anti-bullying orders will likely last for several days – as in he APY Inc case. We can expect therefore disruptions to the running of businesses and organisations depending on the seniority and functions of parties involved, and circumstances in which applications are made.
Details of arguments put to Commissioner Peter Hampton and considerations he made in arriving at his decision will be reported in another article next month.
