Brodie’s Law on bullying needs more consideration for workplace application

Recent attention on the presentation of the Crimes Amendment (Bullying) Bill 2011 to the Victorian Parliament has, understandably, focussed on the changes to the criminal code. However some of that attention should also have been given to the existing rules and control measures under workplace law, particularly considering that the proposed amendments, commonly referred to as Brodie’s law, are being described in the context of workplace bullying.

WorkSafe Victoria’s 2005 guidance on workplace violence and bullying specifies what elements of the Crimes Act 1958 could be relevant to workplace bullying:

• Intentionally or Recklessly Causing Serious Injury
• Intentionally or Recklessly Causing Injury
• Threats to Kill
• Threats to Inflict Serious Injury
• Stalking

The inclusion of the last item may surprise some who have been reading only the newspaper coverage of Brodie’s Law as there was a clear implication that the application of stalking to workplace bullying was new.

Law firm Clayton Utz reminds us that workplace bullying remains undefined in the Crimes Act and that the Bill

“… extends the definition of the pre-existing offence of stalking by expanding the definition of that offence to pick up the type of behaviours that are typical of workplace bullying.”

If the Bill passes the Victorian Parliament, the OHS regulator will need to amend its advice on workplace bullying to reflect the expanded definition of stalking. But as can be seen by the bullet points above, changes to guidance may be minor as stalking is already seen as a potential element of workplace bullying.

An article in The Australian newspaper by Helen Trinca recently listed several concerns about Brodie’s Law.

“Alastair Nicholson, a former chief justice of the Family Court, and chair of the National Centre Against Bullying, who last year argued criminalisation should be considered, now worries the legislation has been rushed.

“While I think the idea is a good one, I am a bit worried about widening the net too far,” he says.” [link added]

“….workplace lawyer Michael Tooma argued the new law was not needed because “it’s already a crime”. The head of the occupational health and safety practice at Norton Rose went on to warn the new laws could inadvertently catch a range of conduct that should not be seen as bullying”  [link added]

“University of Queensland law professor Jim Allan [reportedly said]. “I tend to think we are probably better off not trying to fix [by law] every bad thing that ever happens, because you can’t.” [link added]

Workplace Safety and Prevention of Harm

WorkSafe Victoria has been remarkably quiet on Brodie’s Law, probably as the changes are still before Parliament and are therefore not yet law. Similar silence has occurred in the past over law reforms that have originated from outside the ministerial OHS portfolio. However, the silence should not be interpreted as inaction as it would be surprising if WorkSafe does not have at least a “watching brief” on the issue.

It should also be remembered that a principal aim of OHS law is prevention of harm and Brodie’s Law will not prevent workplace bullying, in itself, a point made by Clayton Utz:

“[the offence of stalking] only works as a deterrent if potential bullies are actually aware of it.”

The major impact of Brodie’s Law seems to be that bullies can be held more accountable for their actions but people will continue to be bullied and harmed by the inappropriate conduct of others.

Victoria’s Attorney-General, Robert Clark, spoke about Brodie’s Law in Parliament on April 6, 2011 . Clark provided a possible clarification of the process:

“ Bullying conduct in the workplace is normally prosecuted and punished under the Occupational Health and Safety Act 2004. If, however, the conduct and consequences of the bullying behaviour are extremely serious, the bill provides another response — that of prosecution under the Crimes Act for the offence of stalking.”

The implication is that prosecution of workplace bullying under the Crimes Act is an option after the OHS avenue has been pursued.

Personal Safety Intervention Orders

Another complexity to Brodie’s Law that needs to be considered is the potential use of personal safety intervention orders.

The concept seems sensible as, in OHS parlance, such an order could eliminate the hazard through an administrative control.  The Department of Justice’s website says that a draft bill on intervention orders is also in the Victorian Parliament at the moment.  This bill, the Personal Safety Intervention Orders Bill 2010, aims:

“…to provide better protection for victims of inappropriate behaviour, such as stalking, assault and harassment in non-family situations. Some of this behaviour can be extremely serious and an intervention order may protect a victim from further inappropriate behaviour.”

The bill seems to address the type of inappropriate behaviours mention in Brodie’s law but how would intervention order work in a workplace? Can work continue if an employee has an intervention order against a bullying boss? Would the employee be required to work elsewhere? How does that supervisor communicate with the employee? How would the intervention order work in a small business which has few employees and even less HR support?

And while all this is going on, how does the employer provide the required counselling and support to the employee in order to ensure that no further harm occurs?

SafetyAtWorkBlog has often said that many workplace hazards, particularly psychosocial, are best controlled through organisational change. Those who try to control hazards without recognising this reality are short-changing companies and workers. Some OHS matters require confronting challenges to how businesses operate and how managers treat their staff, workplace bullying is just such an issue. In The Australian article, Michelle Tuckey, a senior lecturer at the University of South Australia, says

“While this [awareness training] may tick the box for insurers and human resources, Tuckey argues it does not address the real causes. “I am a firm believer that you have to go back to the organisational culture,” she says. “Training is not going far enough back to identify the real problems.”

Tuckey is supported by Monash University’s Simon Moss who says

“We should be focusing on trends in society and in the workplace rather than focusing on bullying per se. There is so much fluidity and change in organisations now and people are much more competitive, and that can increase a tendency to bullying.”

Brodie’s Law is part of that change but the level of organisational and societal change is massive and will take decades to effect. The debate on the amendments is set to continue in the Victorian parliament but perhaps the next peak in workplace bullying discussion and debate will be the release of the draft national code of practice on workplace bullying in the second half of 2011.  It could be a game-changer on the management of psychosocial hazards in the workplace.  Brace yourselves.

Kevin Jones