Board members can occupy positions of high responsibility and power. A recent decision of the Fair Work Commission has shed light however on whether they may also fall under the category of ‘worker’ for the purposes of anti-bullying laws.
Mr Adamson was the Chairperson of the Executive Board of Anangu Pitjantjatjara Yankunytjatjara Inc (APY Inc), a corporate entity whose functions include giving effect to the wishes and opinions of traditional owners of land in Northern South Australia. APY Inc and its Board were both established under the Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA) (Act). Mr Adamson applied for a stop bullying order under s 789FC of the Fair Work Act 2009 (Cth), naming the company, the General Manager and the Deputy Chairperson of the Executive Board. His allegations included interference with his conduct of meetings, preventing him from accessing the minutes of meetings, and preventing the exercise of his powers under the Act.
The General Manager and Deputy Chairperson rejected Mr Adamson’s allegations, raising a number of counter claims and jurisdictional issues. Significantly, they argued that Mr Adamson was not a ‘worker’ as defined by the Fair Work Act, and had no standing to bring the application. They argued that Mr Adamson was not subject to a contract of employment and did not fit within any of the specific categories of workers listed in the legislation, showing Parliament’s intention to limit the category of worker to not include members of an Executive Board. The meaning of a ‘worker’ under the stop bullying provisions is taken from s 7 of the Work Health and Safety Act 2011 (Cth) (WHS Act), which lists categories of workers, including employees, contractors or subcontractors, and volunteers.
In determining whether Mr Adamson was a ‘worker’, Commissioner Hampton considered:
- the nature of Mr Adamson’s role and activities as Chairperson;
- Mr Adamson’s relationship with APY Inc; and
- the intended coverage of the definition of ‘worker’ under the Fair Work Act.
It was held that:
- The categories of workers listed in the WHS Act are non-exhaustive examples which shed light on the scope of the definition, but are not determinative.
- Mr Adamson had a specific role and was paid significant remuneration in light of this, beyond the sitting fees for general members of the Executive Board and exceeding cost reimbursement.
- Despite Mr Adamson not being engaged by APY Inc, and being elected to its Executive Board and nominated as its chair, he did serve the company and had undertaken work in that capacity. As Chairperson he could be directed to act for and on behalf of the Executive Board, provided it was in accordance with a resolution. He was also unable to give directions to staff or make decisions without authorisation, other than the calling of meetings.
- The activities undertaken by Mr Adamson represented work in a literal and contextual sense.
- Mr Adamson was a worker for present purposes and eligible to bring the application, despite not being a worker in the traditional sense.
Mr Adamson’s application was ultimately dismissed as he was no longer a member of the Executive Board, as a result of a recent election. Consequently, there was no further risk of bullying conduct in the future.
Key takeaway for employers
Employers need to be alert to the broad interpretation of a ‘worker’ and the impact that this may have upon the operation of an Executive Board. If an anti-bullying application from a Board member is successful, the Fair Work Commission may make any order it considers appropriate to prevent them from being bullied. This may result in significant challenges to the conduct of Board meetings, depending upon the terms of the order made. Given the unique nature of Board operations and discussions, it is recommended that companies adopt policies that are mindful of anti-bullying legislation, and respond effectively to claims of bullying between Board members.
Thank you to Darcy O’Brien for his contribution to this post.