Will Brodie’s Law deter workplace bullying?

On 1 June 2011 the Australian television program 7PM Project ran an article about “Brodie’s Law” – an increase in the penalties for bullying and stalking.  I was approached to be interviewed for the program due to my comments on this blog.  I turned down the opportunity for a number of reasons, my time had already been committed to my family and filming did not fit that commitment but, more importantly, I am dubious about whether Brodie’s Law will have the deterrent effect that many hope for.

The 7PM Project approached an outspoken lawyer on the issue who refused to participate because he felt that his comments would not have fitted the approach favoured by the producer who contacted us.  I had similar reservations.  When I expressed my opinion about the lack of deterence, one producer acknowledged that this was a position expressed by almost all the people they had approached to participate.

The video of the 7PM Project segment is available online and begins around the 2 minute mark.  Significantly occupational health and safety laws were not mentioned in the article.  There was no mention of any of the OHS guidances on workplace bullying or of any of the regulator’s programs.

A workplace bullying expert of OHS professional would more likely have recited this definition or at least stressed the importance of repetition.

The speaker they chose for expert opinion on workplace bullying was Grant Brecht.  Brecht was asked whether a definition of bullying exists.  He answered that the definition relates to where psychological harm is possible.  This is true but a crucial element of the definition of workplace bullying  was missed in the discussion.  According to WorkSafe Victoria:

“Bullying is repeated unreasonable behaviour directed towards a worker or group of workers that creates a risk to health and safety.” [emphasis added]

Brecht also mentioned the need for individuals to assert themselves in the face of bullying but a detailed look at Brodie Panlock’s case shows that she did assert herself and that she did approach other workers at the cafe for assistance and she did talk to friends about the situation. That none of these actions helped Brodie is a core element of her tragedy.  Bullying, as with many workplace hazards, is best dealt with by not allowing it to take root in any workplace from the very beginning of a business’ operation.  Too many try to retrofit safety into an already toxic and dysfunctional workplace.

The 7PM Project also ran some dubious re-enactments of workplace bullying and, incongruously, some footage of a construction site?!

The discussion of Brodie’s Law will raise community awareness of workplace bullying and increase the number, once again, of enquiries to OHS regulators’ helplines but there are many legal steps between bullying someone in the workplace and being sent to jail for it and workplace regulators are struggling to cope with the increasing demands for investigation into this legitimate workplace hazard.  It should be remembered that the prosecution of Brodie’s bullies resulted after a lot of the investigative legwork had been done already by the Coroner, not by WorkSafe.

At the least Brodie’s Law provides judges with a sentencing option. At the most it continues to stir debate from which some bullying prevention may come.

Parliamentary debate

Part of that debate occurred in the Victorian Parliament on 31 May 2011.  Hansard provides some useful perspective on Brodie’s Law but it also indicates that some of the speakers provided more detail about Brodie Panlock’s mental state and the circumstances of the bullying that was necessary.  It has been reported that Brodie’s mother, Rae, left the public gallery as a result of some of the parliamentary’ impropriety.

Longstanding OHS advocate, former ACTU OHS officer and Greens MP, Sue Pennicuik, said in Parliament referenced the ACTU’s 2000 survey, which was instrumental in motivating WorkSafe Victoria to develop its workplace bullying guidance note.

“Along with that campaign we ran a survey as well, and the ACTU received over 3000 responses to that survey from a range of unions representing the health, education, finance, manufacturing, clerical and administration and public and private sectors. Over half the respondents reported an unhappy and oppressive workplace, and 54 per cent said that intimidating behaviour — shouting, ordering and belittling people — happened in their workplace. Almost a third reported abusive language. Forty-four per cent said that people were afraid to speak up about these behaviours in their workplaces or about working conditions in relation to health and safety. Around a third reported pressure of impossible targets and demands to perform tasks for which they had not been adequately trained.  Twenty per cent had been threatened with the sack, 10 per cent had experienced physically threatening behaviour and 5 per cent reported being assaulted at work. Almost 70 per cent reported that either a manager or supervisor had carried out the bullying behaviour, and 14 per cent said it had been the employer. Less than 30 per cent said the bullying had been carried out by fellow workers or by clients or customers.” (page 17, Hansard)

This data is worth noting because of the influence it carried and the contributory factors listed including  workload, the lack of respect,  and fear.  Elsewhere Pennicuik spoke about excessive working hours. But Pennicuik also raised concerns over the approach to workplace bullying taken by the OHS regulator, WorkSafe.

“The Trades Hall Council’s OHS unit has been following up with WorkSafe regarding its high level of concern about the investigation of bullying complaints, the types of notices being issued, whether the substantive issue is dealt with, the amount of time taken, whether recommendations for prosecutions are made, what is necessary for such recommendations to be made and so on.” (page 19, Hansard)

WorkSafe has had a contentious profile on some of its bullying investigations in the past.

It is worth noting that of all the Parliamentarians from different sides of the political fence who spoke to the Bill on 31 May 2011, the Minister responsible for the Victorian Workcover Authority, Gordon Rich-Phillips, did not speak to this Bill’s second reading.  The Minister spoke about the Brodie Panlock case when he was in Opposition.   It was left to the Minister for Industrial Relations, Richard Dalla-Riva, to speak to the Bill.

Kevin Jones

6 thoughts on “Will Brodie’s Law deter workplace bullying?”

  1. Tony, personally I don\’t believe WorkSafe should be acting on every report of bullying. The regulator stepping in could sometimes make the problem worse. Not all bullying is as one-sided as the awful torment Brodie suffered. In primary school i was severly bullied by the school principal (I was incorrectly accused of hitting a younger child, the black eye was given to her by her abusive parents). I was humiliated and no longer wished to go to school. As my school should have had, workplaces need processes to fairly investigate accusations of bullying and properly deal with bullying and conflicts between employees.

    I definitely believe WorkSafe should continue to provide the helpline though.

  2. Kevin, unfortunately there are far too many half measures in place that do nothing to advance the cause and i take your BOLD print to infer that. I do not resile from my comment at all. There needs to be a confidential point of referral for disaffected workers with safety matters to complain about, to speak honestly and openly with the clear knowledge their employment will not be compromised.

    If we can\’t have an adequate inspectorate then maybe we can have a proactive workforce clearly identifying non compliance and then reporting same to the confidential reference point for action. So long as confidentiality is assured and employment protected.

    Maybe this doesn\’t sit well with some but then again there has not been very much progress in safety in the workplace and maybe this type of initiative just might get things going.

    Mr. Rann and his cohorts in South Australia are getting tough on crime and throwing resources at that, so what is the difference in taking a hard line on injury prevention in the workplace.

    You highlight the multifaceted roles some play and I strongly believe that is part of the problem. There is no clear direction or foundation to operate from so the whole thing is a moving feast as we lurch form one grandiose idea to the next with no obvious result, so we go into another hand wringing exercise to develop another grandiose certain to fail program. History is damning and we are repeating history in this area continually.

  3. It is a shameful situation we live with every day as part of working life and it is not likely to disappear, unless there is a safe method for workers to report bullying to an external authority that is bound to act on every complaint at the work place level.

    The same could be said of workers exposed to known safety risks because an employer is deliberately not complying with safety and has ignored a request by employees to remedy the problem. We all know that workers fear for their jobs if they make a fuss about safety.

    Awareness of this type of facility will focus offending employers attention on potential issues of non compliance and not knowing when they may receive a knock on the door from and inspector will encourage compliance and attention. Sure, there will always be the trouble maker but that can be minimised by the introduction of penalties for vexatious reporting.

    Failure by an employee to comply with any reasonable direction in respect of bullying is a sack-able offence as is non-compliance with safety policy and procedure. This manages to keep things in perspective.

    1. Tony, I think that WorkSafe, and other OHS regulators, do a pretty good job on investigating workplace incidnets, given the limited level of resources they are provided.

      But bullying is different. Proper investigation of workplace bullying takes considerable time and requires skills that many OHS inspectors in the early days of this century did not possess. The increased attention to workplace bullying, and other psychosocial hazards, have demanded a shift of the OHS inspectorate into the realm of Human Resources and out of the comfort zone of engineering solutions. This took some time for the regulators to respond and “skill-up”. In this regard some regulators have been slower than others.

      In some respects OHS inspectors are very similar to case managers (and not in the workers compensation way with which you may be more familiar). Inspectors are often required to support, guide and coax businesses to achieve compliance, to acknowledge that safety improvements need additional funds and, perhaps, increased management commitment. This is not to deny that inspectors must discipline when required.

      WorkSafe inspections will always be a balancing act between encouragement and punishment but the days of the \”safety sheriff\” are gone and new approaches to newly appearing hazards is what seems to be required now.

  4. Kevin,
    I do not believe more penalties will prevent another bullied worker from taking their own life. There are prison sentences for murder but that has not prevented murders. The bullies however, did not murder Brodie but rather acted as disgraceful human beings. She made the unfortunate decision to take her life.
    Better education and support programs for young people (and all workers) to help them understand that they have better options and support in dealing with awful co-workers may help.
    Several friends of mine who recently felt bullied have told me WorkSafe Vic helpline helped them a lot. I\’m sure Brodie\’s case and her parents advocacy, have assisted to raise awareness that resulted in this helpline. Their fight has been worthwhile and beneficial to others.

Leave a Reply

Your email address will not be published. Required fields are marked *