In February 2010, an Australian Facebook Group has put together a petition to call for a thorough review into issues associated with workplace bullying. The initiative stemmed from the successful prosecution of four men who contributed to the suicide of Brodie Panlock through their bullying behaviours. The petition, subtitled “Petition For Criminal and Workplace Reform In Australia For Psychological Abuse”, has now been prepared and is seeking support.
The crux of the petition is:
“Your petitioners ask that the Parliament:
- Conduct a review by the Australian Law Reform Commission or the Productivity Commission or similar agency, of the effectiveness of all current (including criminal, anti-discrimination and OHS laws) and proposed legislation.
- Conduct a review of international best practice legislative and other avenues of government response to the issue of psychological abuse;
Following these reviews:
- New clearer and broader guidelines on what constitutes psychological abuse,
- Law reforms to ensure psychological abuse is appropriately addressed including:
- Amendments to criminal, anti-discrimination, OHS and other relevant laws;
- Amendments to penalties and sentencing laws to enable mandatory counselling and rehabilitation programs to be ordered, with an option of incarceration made available in extreme cases.
- Ensuring internet service providers have adequate powers to respond promptly and terminate the use of their services used to facilitate psychological abuse.
We are asking Parliament to propose to the States and Territories that they adopt legislation consistent with the new objectives.”
Any petition should be read through and questions asked before signing and, by and large, I am supportive of the petition. However there are some points in the petition that may benefit from some further discussion.
The petition calls for a determination of legislative “effectiveness”. This may have multiple meanings. The context of the petition implies that effectiveness means a reduction in the number of people being injured or harmed at work. The Government is likely to say that the OHS legislation from the 1980’s onwards has achieved this and will probably show figures to back it up. Since 2002, there has been a National OHS Strategy with performance benchmarks due to be reached by 2010. The achievement is doubtful but as there is no punishment for non-performance – ho hum.
The call for the Parliament to
“Conduct a review of international best practice legislative and other avenues of government response to the issue of psychological abuse”
has more legs to it and deserves very serious attention. It does not mention bullying, it says “psychological abuse”. This will need defining but has the potential to unify the disparate and, often, competing workplace elements of mental health, bullying, respect, dignity, harassment, discrimination, integrity of bureaucratic processes such as treatment of workers’ compensation recipients……… This could be a big social agenda, so big that the political system and the political will could not undertake such a review fairly and independently.
Royal Commissions are very expensive and only instigated when a government cannot avoid them but such a review as called on above would need to be conducted outside the Australian Law Reform Commission (ALRC) or the Productivity Commission to achieve a result with social acceptance and social integrity. Each of the bodies mentioned above have structures that may impede investigating an issue that, should it be done properly, could undermine the way they operate and the organisations they represent, in relation to the ALRC.
The petition may struggle because its application is so broad. Although this has come about from an instance of workplace bullying, it is clear that the petition will relate also to school bullying and cyber-bullying, elements that were not a focus in the Coroner’s inquest into Brodie Panlock or in the prosecution of the workers at Cafe Vamp. It may be the case that focusing on workplace bullying may have been a better strategy with a second phase of extending interventions to non-workplaces.
The Australian Government has been reviewing OHS laws in order to provide some national harmonisation. The discussion period has finished, submissions are closed and a draft Work Health and Safety Act is being finalised. There are several comments in the submissions that may be useful in the petition campaign.
The submission by the Australian Nursing Federation stated:
“The ANF has particular concerns about psychosocial OHS hazards that historically have not received adequate protection under existing OHS legislation, and which have increased in recent years. The ANF is concerned that some of the provisions of the model Act will not address these issues adequately.”
The Australian Higher Education Industry Association said:
“The legislation should clarify whether a PIN [Provisional Improvement notice] can be issued in respect of process issues or psychosocial issues as well as for physical hazards. It is also unclear whether a PIN can be issued if the issue is already being dealt with under Workplace Relations legislation.”
In response to the question from Safe Work Australia:
“Q32. Should the model Act expressly protect persons from being coerced or induced to exercise their powers in a particular way?”
The Australian Consulting Engineers Association submitted that it
“… does not endorse any form of coercive, threatening or bullying behaviour and it is appropriate to have this included in the model Act.”
Alison Merridew said in her personal submission:
“OHS legislation should specifically refer to, and provide procedures and penalties for dealing with workplace bullying, as a significant threat to worker mental health. Some public sector workplaces have “grievance” processes for addressing bullying which are not underpinned by legislation, and are in that respect inadequate. The bullying procedure should include provision for the initial complaint to be considered by an independent person selected from outside the company or agency.”
Several Commissions for Children and Young People were very clear on their desires for the Work Health and Safety Act to deal with bullying.
“We consider that an improved focus on children and young people’s health and safety needs in the law will assist to reduce their risks in the workplace. It will enable an identification of the particular issues for children and young people and the development of measures appropriate to their needs. For example, workplace bullying, alongside injuries, have been found to be significant problems in the workplace for young people.”
The South Australian OHS Act was specifically referenced by the South Australian branch of the Shop, Distributive and Allied Employees Association:
“The Act does not include a specific section on Bullying and Harassment. Such a section is included South Australian legislation (at s55A) and has been found useful in this state as a mechanism to raise bullying and harassment concerns with employers”
The model Work health and safety Act is nearing completion and the draft contains no direct mention of psychosocial hazard or bullying, but nor should it. These are matters that are best undertaken in regulations rather than the overarching Act. But it does mean that considerable lobbying, campaigning and discussions on the psychosocial issues must be occurring now with the national and state OHS authorities.
The Act does allow for these matters to be addressed under OHS as the Act refers to
“…protecting workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work….”
The Act also says
“…regard must be had to the principle that workers and other persons should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work [or from specified types of substances or plant] as is reasonably practicable.”
The “reasonably practicable” qualification at the end is likely to be exploited by those breaching the legislation at ever possible turn and may impede justice.
There is hope, though, in that the Act provides the power to create regulations on
“Matters relating to prescribing standards relating to the use of or exposure to any physical, biological, chemical or psychological hazard.”
The petition is not the end of the process but part of a process that needs action on several fronts if true change on the issue of workplace bullying is to be effected. It is important not to place to much hope on the petition. Plenty of petitions are presented to Parliament only to be filed away for historical reference.
It is suggested that the lobbyists in the Facebook Group pick their targets well starting with those who acknowledged the workplace hazard in their submissions to the OHS harmonisation process. Next would be the Australia Greens and Family First political parties followed closely by the Independent senator, Nick Xenophon. Their support would get the issue onto the political agenda so that the major parties can see there is a community concern on the issue.
Even considering some of the issues listed above, SafetyAtWorkBlog would encourage all readers to read the petition and seriously consider supporting it.