Is Facebook sniping a type of workplace bullying? Court to rule

SOON after taking over DP World, Paul Scurrah was dismayed to find the practices he heard about as a child were still occurring.

DP World chief Paul Scurrah in Melbourne. Picture: David Geraghty

SOON after taking over DP World, the company controlling half the nation’s container ports market, Paul Scurrah was dismayed to find the questionable practices he heard about as a child were still occurring on the Melbourne waterfront.

Scurrah’s father, Dave, spent 20 years as a merchant seaman for ANL, later working as a stevedore for FG Strang before spending the final year of his life at Conaust, a company that was to become part of DP World.

“I was surprised to see some of the things that I observed as a young fella were still prevalent in today’s modern society,” Scurrah tells The Australian.

“I was very surprised to see that some things hadn’t changed over that 35-year period.”

Scurrah, who became chief executive last year, highlights the waterfront’s age-old “culture of lagging or laggers somehow being ostracised by the rest of the workforce for having the courage to speak up about something, which in general society would be considered totally unacceptable”.

This so-called lagging is a central theme of an unprecedented bullying action by three DP World employees against the company and the Maritime Union of ­Australia.

In the first action against a union under the federal workplace bullying laws, Sharon Bowler, Annette Coombe and Stephen Zwarts have made a series of extraordinary allegations, including that workers defecated in the boots of colleagues and urinated on helmets and overalls as part of a “prison-type mentality” intolerant of “laggers” and “dogs”. While declining to comment on the specific allegations, Scurrah uses an football analogy to illustrate how out of step such behaviour is with the standards expected in modern workplaces.

“In the 70s and 80s, a footballer could run on to the football field, be king-hit and have his jaw broken, and by the time he made it to the tribunal during the week, he was expected because of some code to lose his memory or lie just to protect the guy who did it,” Scurrah says.

“That was dismissed back in those days as, ‘well, that’s just part of footy’.

“Society’s standards have lifted and actually said, ‘You know what? There is something wrong with that’. Why should the guy that’s been subjected to violence on the footy field in an inappropriate manner be expected to cover up or lie for the guy who did it?

“That sort of behaviour still happens in our terminals, and the question I have posed for all the workers that work for me is what sort of perverse world is it where somebody who has the courage to speak up about something that is clearly wrong is considered worse than the person who is doing the wrong thing in the first place?

“In my view, doing the right thing is speaking up when something’s bad, protecting vulnerable people in the circumstances where no one is there to protect them.”

On Thursday, a full bench of the Fair Work Commission will consider whether the allegations made by the three workers fall within the workplace bullying jurisdiction that came into operation on January 1.

When then workplace relations minister Bill Shorten devised the laws, it is unlikely the former union leader would have foreseen that disturbing bullying allegations against his MUA comrades would later shape up as a test of the legislation.

Under the Fair Work Act, a worker is bullied at work if an individual or group of individuals repeatedly behaves unreasonably towards the worker and that behaviour creates a risk to health and safety. Given the nature of the allegations made by the three workers, the full bench will consider whether the bullying jurisdiction extends to Facebook comments and other activities outside the physical confines of a workplace.

Among their points of claim, Coombe and Bowker assert union members and officials used social media to insult them, by making Facebook posts that referred to “lagger” and “dogs”.

They also cite meetings with union representatives outside the workplace where officials allegedly told them that they could not guarantee their safety in the workplace if a union delegate at the centre of the dispute lost his job.

The Australian Industry Group, which has intervened in the proceedings, will argue that the phrase “bullied at work” confines the full bench.

“We will argue that this phrase limits the commission’s jurisdiction to circumstances where the bullying occurs when the worker is carrying out work at the employer’s workplace during working hours or carrying out work for the employer at another location during working hours,” says Stephen Smith, Ai Group’s national workplace relations director.

“There needs to be a tangible and reasonable boundary so that employers are not exposed to claims for conduct that occurs outside of work.”

However, a number of the other allegations, lawyers say, are more clear-cut and expected to be upheld as having occurred at work.

For example, union member Bobby Guy allegedly told Bowker at work: “You know how this works. We are going to stick together. You are on your own. The only time we will do anything for you is if you are being raped or shot at.”

In a separate incident in November last year, the union’s deputy branch secretary, David Schliebs, allegedly walked behind Bowker on a terminal stairwell and said: “Don’t fall down the stairs and tell everyone that I pushed you.’’

The three workers are being represented by Tim Lange, a partner with Piper Alderman. The firm, which has an employer focus, is acting pro-bono.

“The question comes down to what happens while a worker is at work,” Lange says.

“It is right that there must be a reasonable boundary drawn around that concept. The applicants will say that reasonable boundary is the same one which also identifies when conduct can be the subject of a lawful and reasonable direction, or disciplinary action for failing to follow a ­direction.”

Lange says the commission is used to dealing with clashes between work and out-of-hours conduct.

“There is a substantial history of commission cases allowing for control over social media and nominally out-of hours conduct where the conduct has potential to seriously damage other workers in their work,” he says.

“Any more restrictive view of when conduct occurs while a worker is ‘at work’ would limit the capacity to use anti-bullying measures to prevent unreasonable third-party behaviour affecting work.

“The full bench case will be an important development in understanding how and when anti-bullying orders can be used, and we are looking forward to putting these submissions to the Commission and moving closer to there being some resolution for the individual applicants.”

Meanwhile, Scurrah is pushing on with implementing overdue cultural change throughout the workforce.

He says that when he arrived at the company he was struck by the acceptance of “foul language” in the workplace and how the practice had “permeated throughout every part of the organisation”.

He has introduced a “zero tolerance” approach to swearing where if an employee swears in a meeting, the worker is asked to desist. If they continue, they are told to leave the meeting.

“The large majority of our workforce are actually honest, hardworking Australians,” he says. “But there is no doubt that there is unacceptable behaviour.”