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.
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)
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.