Bullying Code of Practice illustrates the huge challenges of OHS in Australia

Australia has released a draft Code of Practice on “preventing and responding to workplace bullying“.  As it is the latest publication on this issue by an OHS authority, it deserves some analysis.

The draft code has applied the established definition of workplace bullying as:

“repeated, unreasonable behaviour directed towards a worker or a group of workers, that creates a risk to health and safety.”

It covers direct and indirect bullying and includes the new communications technologies through which stalking and cyberbullying can occur.

Unintentional bullying

Curiously the draft Code also includes “unintentional bullying”:

“Bullying can also be unintentional, where actions which, although not intended to humiliate, offend, intimidate or distress, cause and should reasonably have been expected to cause that effect.  Sometimes people do not realise that their behaviour can be harmful to others.  In some situations, behaviours may unintentionally cause distress and be perceived as bullying.”

This section has generated some discussion already.  Professional colleagues today explained to me how inappropriate acts may be construed by the recipient as bullying even through the proponent does not see the actions as such.  The quote above importantly emphasises the role of perception, a concept that is not traditionally associated with OHS, where facts, figures and engineering solutions are more comfortable.  Perceived bullying, injustices and abuse have been more often dealt with through human resources networks.  It is difficult to see any way of investigating workplace bullying without substantial support from an HR professional.  It is similarly difficult to see any way of preventing bullying without access to this resource.

Intended Audience

This issue also brings into question the intended audience of this draft Code of Practice.  A code of practice is an indication of one way of complying with the OHS obligations of Acts and Regulations.  The language is supposed to be as plain and clear as possible in order to be the most effective in advising companies and managers on how to comply.  This draft bullying code of practice seems to complicate the issue more than clarify, particularly for small- to medium-sized (SME) companies with limited OHS/HR resources.

The draft code outlines these points for managing the risks of workplace bullying:

  • “identify bullying risk factors
  • assess the likelihood of bullying occurring and its impact
  • control the risks by eliminating them, or where that is not reasonably practicable, minimising the risk as far as reasonably practicable, and
  • review the effectiveness of the control measures.”

Risk Management

The code lists the following as potential contributory risk factors in section 2.1:

  • Organisational culture
  • Leadership styles
  • Systems of work
  • Workplace relationships
  • Workplace characteristics

These are difficult to define in most workplaces and would be challenging for those in the SME sector who may believe that this hazard does not apply in their particular workplace as “everyone gets along and those who don’t, leave”.

Systems of workload

One example of how challenging this could be is that the draft code identifies “workload and excessive task demands” as a risk element.  The code advises a control measure of “reduce excessive working hours”.  How is this done when, according to ACTU statistics quoted in an undated Findlaw Australia article,

“The ACTU maintains that at least 2.4 million Australians now work in excess of 45 hours per week and at least 1.6 million Australians work in excess of 50 hours per week.

According to the ACTU, Australia has the fastest growing overtime rate globally and is now ranked only behind Korea in the developed world with respect to the average numbers of hours worked per week.”

The draft bullying code of practice implies that at least 1.6 to 2.4 million workers are at a heightened risk of being exposed to bullying.

Juggling

It is next to impossible for a company to identify the factors listed above without external support and perspective, and is likely to lead to accusations of OHS regulators contributing to the burdens of who WorkSafe Victoria describes as the “jugglers”.

The intention of harmonisation was to reduce the regulatory burden but this draft code is a good example of the perception that “new” hazards are being included in the compliance burden.  Those hazards have always existed but many companies have chosen to ignore them on the basis of ignorance or “lucky” management.  Now, by publishing national draft codes on the hazards of bullying and fatigue, and others, these hazards are pushed to the front of the compliance agenda with chemicals, asbestos, falls from height etc..  To many businesses this will feel like the government and OHS regulators are increasing the number of juggling balls for the juggler, and even, in fact, making some of those balls into bricks, skittles or little time bombs.

The perception of business will be that the harmonisation process has complicated safety management.

Complex = serious = costly

In 2010 Professor Patrick Hudson told an audience of OHS professionals in Melbourne, Australia, that OHS should not be simplified but that the community must realise that safety management is complex and does demand attention and resources.  Extrapolating from his lecture it is fair to say that trying to simplify safety over the last forty years has led to a society that is comfortable with dismissing workplace safety as “common sense” and categorising incidents as individual faults instead of symptoms of systemic faults.

Workplace bullying advice has been a growth market ever since the ACTU survey of 2000.  Workplace bullying books are an established sector of management book lists.  This has led to discussions about “toxic managers”, personal resilience, leadership training and bullying specialists.  All of this costs and many of these costs are spent on the “hazard du jour” rather than spending on other control measures which may have a greater safety benefit for the workers and the company.

The downside of the Hudson position is that complexity makes an issue seem more serious but that the perceived complexity can only be addressed by expensive advisers.  Robens-based OHS law in the 1970s and 1980s advocated safety improvements principally from the existing workplace resources but supported by additional training.  Its aim was to build on the experience and wisdom of those already in the workplace or industry sector to best identify hazard solutions.  There are echoes of this in the consultation provisions of the new Work Health and Safety Act and Regulations in Australia but not to the same extent of empowerment as in those earlier times.

For years OHS law has been structured, and marketed, as law that can be understood and applied by the non-lawyer.  That level of unsophisticated application no longer applies because, even though codes of practice (the dummies guides to safety) continue to be released, the risk elements of the modern workplace and the safety expectations of the public (exploited by the insurance companies and others) have complicated workplace safety beyond the capacities of the businesses that are not big enough for a safety department or unit.  Occupational Health and Safety has become a specialised field (whether it is a profession can be debated) that must coordinate a plethora of resources to arrive at a risk strategy that is compatible with core business aims.

No workplace issue better illustrates the complexity of safety than bullying and analysis of the new draft code of practice for preventing and responding to workplace bullying shows just how challenging the control of workplace bullying will be and how difficult it will be for companies to comply with the requirement to provide a workplace that is safe and without risks to health.

Kevin Jones

reservoir, victoria, australia

6 thoughts on “Bullying Code of Practice illustrates the huge challenges of OHS in Australia”

  1. Hear hear to Hudson. The \”OHS is simple\” jibberish survived way too long. But then there are genuinely complex issues as compared to unpalatable. For mine fixing bullying is categorically in the latter group.

    Engendering respect throughout a workplace and insisting on and supporting managers to make sure it happens is sort of complex, but I suspect it\’s mostly seen, in the workplaces where bullying is a chronic problem, as unpalatable.

  2. I agree with the acknowledgement of the complexity of this issue and it\’s potential impact on workplaces.

    I take heart in this matter from the fact that, where I am currently employed, there is an established \’bullying and harrassment\’ (prevention) policy supported by a robust grievance management procedure that is implemented by the Executive HR Manager in response to WRITTEN claims by affected employees. So far it seems to be working reasonably well.

    And yet we still experience some complexity from a different direction. In an industry where there seems to be an improving trend in performance management, this grievance process, along with \’work related stress\’ claims has been overused by staff that resent having their (under) performance questioned. We even have one employee who posted derogatory remarks on facebook about her work colleagues then claimed she was being bullied by them and lodged a work related stress claim. This has been declined by our insurer based on a factual investigation but it is still under appeal.

    And in other situations, unfortunately some mud always sticks and some good managers can become easy targets for these resentful, underperforming employees.

    Not to mention the time and resource cost and disruptive influence of investigating each claim.

    I don\’t see any way this issue can be simplified without significant downsides.

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