Public hearings into Workplace Bullying to commence in Australia

Next week Australia holds public hearings into the issue of workplace bullying. Currently the House Standing Committee on Education and Employment has not yet made any submissions publicly available which handicaps the value of the public hearings for observers but the Trade Unions have released their submissions.  Generally, the suggestions for control measures are progressive but the submissions also indicate the extent of the challenge in “controlling” workplace bullying and some of the challenges facing this inquiry.

The ACTU claims that workplace bullying was given national prominence following a survey of union members in 2000 but that survey is not representative of the broader Australian community and should be treated with caution.  The ACTU submission seeks support for its survey results from more authoritative sources such as Safe Work Australia and the Productivity Commission.  But neither of these sources indicates workplace bullying to be as big an issue as the ACTU claims.

Safe Work Australia’s figures, quoted by the ACTU , say that in

“In 2007/08, 26% of accepted workers compensation claims for mental stress in Australia resulted in 26 or more weeks off work.”

The significance in this quote is that bullying is not mentioned and if one accepts that bullying is a subset of mental stress and psychosocial hazards, bullying should be only a fraction of the 26% figure.  It is also the case that it is common for victims of bullying to eliminate the hazard through resignation rather than lodge workers’ compensation claims.  So one metric may indicate a low bullying rate but another indicates a “hidden” rate.  Accurate measurement, the accumulation of evidence, is a major problem in any study of workplace bullying and is a major challenge for this Parliamentary Inquiry.

The ACTU insists that workplace bullying exists in a workplace setting.  This is obvious but needs constant restating to ensure that any debate on workplace bullying is not hijacked or diverted by other social bullying such as schoolyard bullying and cyberbullying.  Workplace bullying should be addressed under occupational health and safety laws but WorkSafe Victoria’s struggle with this and its filtering of non-OHS bullying complaints shows that an OHS regulatory approach has distinct limitations.

The ACTU submission mentions other regulatory bodies and authorities, such as Fair Work Australia and the Human Rights and Equal Opportunity Commission.  These can, and perhaps should, have more of a role in combating workplace bullying through providing support and guidance to those workers who contact OHS regulators with bullying complaints.  WorkSafe Victoria has shown that the community sees it as the major contact point on bullying issues.  OHS regulators could be the conduit for transferring non-workplace bullying complaints to the relevant authority.  However, which authority matches which type of complaint?

The Parliamentary Inquiry would do well to recommend the government establishes a body to coordinate bullying complaints.  This body should consist of representatives from OHS agencies, mental health experts, human rights advocates and legal experts, and report regularly to the government on instances of bullying, the resolution of bullying cases and identifying interventions that work.

The ACTU calls for a “multi-agency approach” but mostly for the collation of workplace bullying data than for talking preventive action.  It understandably wants to keep workplace bullying in the OHS regulatory realm but does not address those thousands of bullying complaints to OHS regulators.  Who should handle those people who are in difficult workplace relationships that WorkSafe says do not fit the OHS definition?

The submission of the Victorian Trades Hall Council (VTHC) is arguably more useful as it seems more direct.  VTHC also mentions a WorkSafe Victoria workplace bullying program that has not been heard of before and of which there is no mention on the WorkSafe Victoria website – “Top Down Bottom Up” Bullying Prevention Project.

“Many workplaces, may appear to have excellent HR policies but often they do little to address workplaces culture or to improve compliance. The lack of willingness to do this is illustrated by the failure of a WorkSafe Victoria funded ‘Top Down Bottom Up’ Bullying Prevention Project due to a lack of interested companies to participate.”

WorkSafe Victoria has been contacted for more information on this prevention project.

The VTHC recommendations are worth noting as they are less general than those of the ACTU.  Some are more concerned with strengthening the role of health and safety representatives but it is a submission from a union body.  The recommendations seem to place a great deal of faith in the establishment of a national Model Code on the Prevention and Management of Workplace Bullying.  Too much focus is on the Code to establish rules of behaviour and a regulator to enforce those rules.  It would have been interesting to hear how business owners can be encouraged to accept and use a Code rather than having it enforced onto them.

It would also have been interesting for an assessment of the success of  Victorian bullying codes and guidances as Victoria has been the State with this information in place for the longest time.

VTHC Recommendations:

  • “The adoption of a national definition of bullying that incorporates the concept of repeated nature of the behaviour consistent across laws (eg WHS, FWA, etc), but under the WHS regime, it must be linked to the health and safety risks to the health and safety of workers.
  • The finalisation of the Draft Model Code of Practice on the Prevention of Bullying under the relevant work health and safety laws developed through SafeWork Australia as an essential addition to Australia’s work health and safety regulatory framework to improve the current patchy guidance/codes of practice that are currently in existence.
  • The Model Code must recognise that Health and Safety Representatives (HSRs) have rights to represent workers in raising issues, monitoring measures taken by the employer, investigating complaints from co-workers, and inquiring into anything that appears to be a risk to the health or safety of workers. The Model Prevention of Bullying Code must reflect not only the role of worker representatives in raising issues but the rights of workers to representation in dealing with bullying.
  • The development of regulatory and administrative changes in industrial and discrimination law which would complement a National Code of Practice for the Prevention of Bullying under WHS or OHS laws.
  • The general duty provisions of Work Health and Safety law be supplemented by a regulation to address psychosocial risks (advocated in the ACTU Submission).
  • Ensure regulators and workplace parties are provided with the guidance and tools to be able to identify risk factors, develop and implement solutions.
  • Ensure that WHS/OHS inspectorates encourage and where necessary enforce compliance with WHS/OHS laws, in particular by using all compliance tools at their disposal.
  • Provide WHS/OHS inspectors and staff with comprehensive training on bullying including the appropriate investigation of complaints and compliance and enforcement measures to address risk factors.
  • Provide for alternative mechanisms for handling of workplace bullying complaints.
  • The creation of a mechanism that gives an individual the ability to seek a remedy which is fast, efficient, specific under civil law e.g. a stand alone tribunal within FWA or under discrimination law
  • The removal of the impediments that limit the access to workers compensation of workers suffering psychological injury, legal and administrative.
  • Amend workers compensation legislation by removal of the term “reasonable management decisions”.”

Victorians know that the biggest issue in workplace bullying in the last decade was the suicide of Brodie Panlock.  The Coroner’s findings and the subsequent prosecution by WorkSafe (the fact that WorkSafe only acted after a Coroner’s findings is very pertinent to the role of OHS regulators in workplace bullying) generated enormous public outrage over the workplace bullying.

OHS change cannot come only from the production of Codes or the enforcement by regulators or a protest march by trade unionists but must have widespread community support (hopefully without the outrage).  These disparate agencies of change need coordination so as not to work against each other.  This level of coordination can best come from a body established to coordinate bullying complaints, as mentioned above.

SafetyAtWorkBlog will be attending the Melbourne public hearings on 11 July 2012.  Some parts of the hearing are able to be reported, others, particularly, impact statements cannot be reported.  SafetyAtWorkBlog will be tweeting whenever possible through the Melbourne hearing via @SafetyOz .

Kevin Jones

8 thoughts on “Public hearings into Workplace Bullying to commence in Australia”

  1. If an employee is being ill-advised, poorly managed, and neglected as a result of the incompetence of a series of staff, then this continual inefficiency of a department, who has a duty of care to employees is certainly bullying (this neglect or omission of key staff to solve or report issues that are affecting staff) is bullying.
    This is precisely why this type of “lack of reasonable help”) is so wrong. Government staff are being paid to not solve issues, that is a waste of my taxes, not to mention the trauma it puts on workers. continued inefficiency is continued abuse and bulling and by a group or series of people – then it is mobbing.
    By not reducing workloads, or the number of meetings etc. leaving out proper training etc then that constitutes abuse or bullying.

    1. Every case needs careful assessment and we need to continue to refer to the current definition of workplace bullying in Australia – “repeated, unreasonable behaviour directed toward an employee, or group of employees, that creates a risk to health and safety.”
      The elements described above can equate to bullying but could also relate to other workplace abuse, incompetence and inadequate resourcing. I don’t believe that a specific compbination can create certainty about bullying. By jumping to an accusation of bullying we may be missing other organisational and managerial elements that are easier to remedy.

  2. Injured employees can be pressured into return to workplans designed by the managers and case workers ,that are not in their best interest if they were consulted at all ,why would the duty of care stop in this case because the worker is injured ,there have been many previous reports of injured workers subjected to bullying ,injured workers are less able defend themselves from bullying from h.r and insurance companies after all as the insurance company works for the employer the same way a contractor would surely there is the same responsibility [I was an ohs rep]

    1. Michael, I agree that sometimes injured workers are ill-advised, poorly managed, and neglected by employers and claims managers, but I am not sure that equates to workplace bullying. It may simply be abuse.

  3. Long overdue ,maybe inspectors have to go to the workplace or the insurance claims office for injured workers who are also subject to extreme pressure when injured, Ive seen a number of people who have had benefits cut off when injured and unable to work at the whim of these case managers, who then have to employ lawyers to get payments resumed ,it would be no stretch of the imagination to believe that suicide is higher amongst injured workers .

    1. Michael, we will have to wait and see whether the inquiry covers the conduct you mention. I suspect not as at type of conduct does not seem to fit with the current common definition for workplace bullying

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