Boardroom Bullies

Being on the board of a not-for-profit can be just as high pressure a position as in the corporate world. To some board members, their role might even feel like a full-time job. However, it could come as a surprise to board members to learn that it is possible that they could be considered workers for the purposes of anti-bullying laws under the Fair Work Act 2009.

In a recent decision, the Fair Work Commission made the unprecedented move of classifying the Chair of an Executive Board as a worker in relation to a stop bullying order. Before we become too excited about a flood of boardroom anti-bullying orders, we should note that the Commissioner ultimately did not make any anti-bullying orders because the Chair had not been re-elected by the time the decision was heard and the Commissioner acknowledged the unique nature of the Chair’s role:

• the Chair had a specific role under the terms of an Act of Parliament and received a significant allowance for his role - $920.15 gross per week plus a vehicle allowance of $450 per week;
• the remuneration was well beyond the sitting fees for general members of the Executive Board and exceeded cost reimbursement;
• PAYG tax was deducted from the Chair’s allowance; and
• the Chair was expected to represent the organisation regularly  within the community.

Nevertheless, this decision is a reminder that anti-bullying orders under the Fair Work Act 2009 do not only apply to employees, but also apply to ‘workers’, defined broadly to include independent contractors and volunteers.

This decision is also a reminder that bullying and anti-social behaviour can occur at board level to an extent that is harmful to the proper functioning and flourishing of an organisation. Not-for-profits should be aware of this risk and ensure that the Chair and senior board members are equipped to conduct orderly board meetings. Some not-for-profits also find it helpful to develop specific codes of conduct for board members, which specify appropriate and inappropriate behaviour and introduce accountability measures.

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