In May 2010, Workplace Health & Safety Queensland uploaded a Workplace Harassment Assessment Tool. The curious element to the information is that Queensland does not mention the word “bullying” even though the assessment criteria cover this hazard.
As Australia moves to harmonised legislation on workplace safety issues, the harmonisation of terminology is going to be important and probably subject to lively discussion. Below is a discussion point.
The Queensland workplace harassment information clearly includes actions and conduct that people would consider workplace bullying. The Queensland definition of harassment illustrates this:
“A person is subjected to workplace harassment if the person is subjected to repeated behaviour, other than behaviour amounting to sexual harassment, by a person, including the person’s employer, a co-worker or group of co-workers of the person that:
a) is unwelcome and unsolicited
b) the person considers to be offensive, intimidating, humiliating or threatening
c) a reasonable person would consider to be offensive, humiliating, intimidating, or threatening.”
The definition exempts sexual harassment.
On searching the WorkSafeWA website, for example, for information on workplace harassment only bullying references resulted. Western Australia’s take on harassment is different. According to its bullying guidance note:
“Some bullying behaviours may also be unlawful under other legislation, for example the Equal Opportunity Act 1984 covers sexual and racial harassment.”
Clearly both jurisdictions consider bullying as a subset of harassment but some harassments are covered by non-OHS legislation and cases may, therefore, be handled by different administrative agencies or tribunals. Workplace bullying may be easy to identify and there are many guides and suggestions on how to prevent it but employees and companies may continue to be confused about which agency to bring harassment matters to. Is the harassment an OHS issue, an EEO issue or a sexual harassment matter?
(Worksafe Victoria and SafeWorkSA refer to “bullying and harassment” as if they are equal elements, not one as a subset of the other.)
Companies may be able to address the hazards by focusing on harassment but they seem to be supported by a continuingly confusing structure of non-OHS options. Harmonisation of OHS laws is admirable but on the issue of psychosocial hazards like harassment and bullying the draft Work Health & Safety Act is of little help. It is likely that harassment and bullying may need to be addressed through regulations or guidance, which themselves are intended to be harmonised.
The OHS harmonisation process is unlikely to pull in issues that are not specifically related to work, like sexual harassment or racial discrimination. So it leaves business operators and human resources professionals with a number of “jurisdictions” that they must follow. It leaves employees with an option of choosing which regulatory agency to take their concerns to depending on what elements were a priority in their experience of harassment, or which agency would provide a more “supportive” hearing.
If harmonisation is about reducing business costs, reducing red tape and streamlining processes, the government will need to harmonise the terminology of harassment and the enforcement policies of several agencies outside the OHS sphere.
SafeWork Australia has been contacted for a list of the issues scheduled for harmonised regulations over the next few months.
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