Anyone dealing with occupational health and safety (OHS), or in any profession, knows to be careful with one’s words in public. This is particularly so when one is dealing with mental health issues or claims of workplace bullying. This week Senator Eric Abetz, Australia’s Workplace Relations Minister, seems to have overstepped the mark by misrepresenting some Federal Court Orders as related to workplace bullying, when the Court made no such statement. This could simply be dismissed as political hyperbole in the heat of the moment but this was no off-the-cuff remark. He headlined his media release on 13 March 2014 as:
“Joe McDonald found guilty of workplace bullying – yet again. Bill Shorten must now act”.
According to Safe Work Australia, an organisation within Senator Abetz’s portfolio, workplace bullying is defined in the most recent national guide as
“repeated and unreasonable behaviour directed towards a worker or a group of workers that creates a risk to health and safety.” (page 2)
Nowhere in the Federal Court orders* is workplace bullying, or any other bullying, mentioned and the Federal Court has not found Joe McDonald guilty of workplace bullying. The best that can be said is that Joe McDonald has a history of intimidation on construction sites and that this has created tense relations between the workforce and employers (perhaps a confused safety culture) and generated delays in construction.
Does this all matter? Yes
Senator Abetz’s media release indicates that he is willing to make accusations of workplace bullying for political purposes. This shows disrespect to real victims of workplace bullying and a disregard for the work of people within his own portfolio.
After many years and several inquiries into workplace bullying Australia, and New Zealand, has a definition of workplace bullying with which Courts and tribunals can work and with which OHS professionals can tailor prevention advice and that employers and workers can use to accurately determine whether someone’s actions fit within OHS laws. Senator Abetz’s statement undercuts all of that work by showing that an accusation of workplace bullying can be made without adequate investigation and for purposes other than eliminating or preventing workplace bullying.
Senator Abetz and the Liberal Party went to the most recent election with the pledge that workplace bullying will be “comprehensively addressed”.
“The Coalition will support Labor’s proposed changes to address workplace bullying but only if it is clear that a worker has first sought help and impartial advice from an independent regulatory agency, and further, the changes are expanded to include the conduct of union officials towards workers and employers.” (emphasis added)
The policy also stated that
“….many of the more serious cases of bullying have involved unions and their relationship with managers, employers and workers. To protect unions and allow them to go about unchecked, Labor has deliberately excluded them from coverage of their proposed changes.”
Can a company be bullied?
Whether this is the case or not, the ideological links on bullying by unionists are obvious but more work needs to be done on implementation. If workplace bullying focuses on OHS risks of a worker or a group of workers, as the definition requires, who is being bullied by Joe McDonald’s actions? Which worker? Can a company be bullied?
The Fair Work Act applies the same definition of workplace bullying with a focus on a worker or group and states that workplace bullying is not “one off instances of insensitivity or rudeness” which is what Joe McDonald has been doing. He has been doing this for a long time but at different construction sites, with different companies and with different workers and company representatives. A lot of “one off instances” does not equal the repetition required by the workplace bullying definition.
The Federal Court orders refer to contraventions of Section 348 – Coercion
” A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to engage in industrial activity”.
If Senator Abetz wants to tackle union intimidation as workplace bullying, he perhaps should look at the new workplace bullying guide from New Zealand which includes “institutional bullying”. One could argue that the conduct of some trade union organisers could fit this definition:
“Institutional bullying or corporate bullying is when an organisation’s norms, culture or practice allow:
- behaviour which causes offence or undue stress to others without concern for the consequences or their wellbeing…….”
Although the NZ guide mirrors Australia’s in focusing on workers and groups of workers, Institutional Bullying refers to “offence or undue stress to others…” “Others” could include a corporate entity. However if the Australian Government was to pursue this OHS path it is likely to set precedents with unexpected consequences. OHS has never had a profile strong enough, or advocates who are sufficiently vocal or authoritative to argue for or against such a strategy. OHS struggles for legitimacy now, if institutional bullying was applied in this manner, the “nanny state” accusations would be deafening.
Senator Abetz’s political point is obvious and many sympathise with it but he is doing a disservice to years of OHS research and work by labelling Joe McDonald’s actions as workplace bullying. It is not. Abetz would be on stronger territory if he continued to describe the actions as thuggery. I don’t think there is an association of thugs who would object.
*I can’t find them on-line but their references are (P)WAD170/2013 and (P)WAD44/2013 so keep an eye out for them.