Body Corporate volunteer committee members appointed to deal with the Caretaking Service Contractors - be mindful that your behaviour and communication is likely covered by the Fair Work Act 2009
Reasonable management action carried out in a reasonable manner
When a Body Corporate Committee appoints a representative to be the liaison with a Caretaking Service Contractor, the Body Corporate representative should be aware that:
while the Caretaking Service Contractor’s director(s) and employees are carrying out work associated with the caretaking duties, they are likely to be considered to be at a “constitutionally covered business” which means that under the Fair Work Act 2009 they are entitled to legal protection from “repeated unreasonable behaviour that creates a risk to their health and safety” (otherwise called “bullying at work”).
the Body Corporate representative is entitled to engage in “reasonable management action which must be carried out in a reasonable manner”. It is important that the Body Corporate’s representative has a good understanding of the caretaking agreement and duties.
the question of whether behaviour towards a Caretaking Service Contractor fall into the category of:
"reasonable management action carried out in a reasonable manner”
------ or ------
"bullying at work”
turns on the facts of the representative’s particular communication and behaviour (which are determined based on the parties’ evidence given to the Fair Work Commission at a hearing).
Fair Work Decision Example Involving a Body Corporate Chairperson in Queensland
In the Fair Work Commission decision of Application by A [2018] FWC 4147 (13 July 2018), a Body Corporate Chairperson’s language and behaviour towards the Director of a Caretaking Service Contractor was assessed firstly to determine whether there was sufficient evidence of the alleged behaviour, and if so, to then determine whether behaviour and language it fell into the category of:
"reasonable management action carried out in a reasonable manner”
------ or ------
"bullying at work”
The Fair Work Commission found:
the Body Corporate Chairperson’s role allows him to raise issues with the Caretaking Service Contractor’s Director about the performance or non-performance of the caretaking duties but it must be done in a reasonable manner;
the Caretaking Service Contractor was not entirely blameless in creating the conflict that existed, and in some cases was found not to be performing the caretaking duties under the caretaking agreement;
However, sometimes the manner in which the Body Corporate’s Chairperson raised the issues did amount to “bullying at work” (summarised below):
Example of Chairperson’s behaviour that amounted to “bullying at work” | What would have been ‘reasonable management action carried out in a reasonable manner |
Sending multiple emails about matters that are not urgent, outside of business hours, which is not reasonable.
| Telephoning the caretaker first before sending an email about an issue relating to the caretaking duties.
Sending an email after attempting a telephone call. |
Using sarcastic language. | Ensuring written and verbal communication does not include sarcastic language. |
Using derogatory language. | Ensuring written and verbal communication does not include derogatory language. |
Disseminating emails containing the above to all committee members. |
|
Excessive frequency of emails. | Sending a reasonable number of emails during business hours only. |
The manner in which issues are articulated is not reasonable. |
|
Demanding that the Caretaking Service Contractor carry out duties that it is not contractually required to perform under the caretaking agreement.
| Ensuring that reference is made to the duty that the Caretaking Service Contractor is required to perform under the caretaking agreement. |
Outcome: The Fair Work Commission ordered the Body Corporate Chairperson to prevent the Director of the Caretaking Service Contractor from being bullied at work including an order about the timing, subject matter and content of emails sent by the Chairperson.
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