A recent decision of the Fair Work Commission is a timely reminder to revise organisational policies and procedures so that they clearly identify the behavioural standards expected of board members.
The Decision
On 19 May 2017, Commissioner Hampton handed down a decision in relation to an application for an order to stop bullying made by Mr Trevor Yawirki Adamson.
Mr Adamson was the Chairperson of the Executive Board of the Anangu Pitjanjatjara Yankunytjatjara Inc (APY Inc). APY Inc administers around 100,000 square kilometres of land in northern South Australia which is vested to the Anangu Pitjanjatjara Yankunytjatjara people.
Mr Adamson brought allegations of bullying against the General Manager and Deputy Chair Person of the Executive Board of APY Inc.
In making his decision, Commissioner Hampton determined that an Executive Chairperson of a Board is capable of being a ‘worker’ under the stop bullying provisions of the Fair Work Act 2009. This was the case even though there was no employment contract between Mr Adamson and APY Inc.
Commissioner Hampton found that “The essential question is whether Mr Adamson as chair person is a person who carries out work in any capacity for APY Inc”.
Commissioner Hampton divided this formulation into two parts – first whether Mr Adamson was performing work, and secondly whether he was performing work for APY Inc.
Commissioner Hampton looked at the duties performed by the Executive Chairperson and considered the significant additional remuneration and expense payments that Mr Adamson was paid as chairperson. He found that activities undertaken by Mr Adamson in performing his role as Chairperson represented work for the purpose of the stop bullying provisions.
The Commissioner found that the question of whether Mr Adamson was performing work for APY Inc was a more difficult one.
In examining the Act that established the Board, Commissioner Hampton found that it was significant that the Executive Chairperson could not undertake any work in his capacity as Chair Person without a resolution of the executive board of APY Inc. It followed, in the decision of the Commissioner, that Mr Adamson was performing his duties as Executive Chairperson (which had already found to be work) for the Executive Board of APY Inc.
Commission Hampton did not make any findings in relation to the substantive part of Mr Adamson’s application and found that the fact that Mr Adamson had not been re-elected to the Executive Board meant that he was no longer a ‘worker’ for the purposes of the stop bullying provisions. This ultimately meant that the stop bullying order could not proceed and he dismissed the application.
What does this mean?
Whether a non-employee board member will be covered by the stop bullying provisions of the Fair Work Act will depend on the duties performed by the board member and the circumstances in which they perform them.
This decision is particularly significant for smaller and/or not for profit boards where the boundaries between the advisory function of a board member and the practical functions of workers can become blurred.
Keep in mind that even if your board members do not perform work for your organisation, they do come into contact with your employees and are capable of subjecting your employees to bullying behaviour. It is therefore important to have comprehensive bullying policies and code of conduct that apply to board members and that board members understand what behavioural obligations they have towards each other and to employees.
Take homes for implementing and encouraging an anti-bullying culture at Board level
Policies and Code of Conduct
Ensure you have a robust and effective Anti Bullying Policy that is expressed to apply to the whole organisation. A Code of Conduct built on your organisational values gives everyone associated with your organisation clear guidance on what kinds of behaviours are expected in the workplace.
Training
Bullying often makes the news, but not everyone is sure what it is or what it is not.
Boards are made up of groups of people from different backgrounds (this is their strength) and discussions at board level are often frank and fearless. Time is well spent on getting to know the training needs of your board, individually and collectively. Look at rolling out specific training programs to the Board on communicating effectively and to provide clear information about bullying, and minimising situations in which bullying may otherwise arise.
Worklogic’s Training Programs
We frequently work with board and senior executives to assist them to always fully demonstrate “walking the walk” and engaging with all staff constructively. If your organisation needs any help implementing effective policies and training, please contact us.
About Jodie Fox
Jodie Fox brings to Worklogic a wealth of experience gained working with clients from a diverse range of industries. Previously working as an employment lawyer at a top-tier law firm for almost 10 years, Jodie worked closely with a host of large and small clients.
Worklogic offers a range of services to help you develop effective employment policies and effective code of conduct and training programs for your organisation. If you need help in this area, contact Jodie for an obligation free consultation via email or call (03) 9981 6558.
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