The latest set of transcripts from Australia’s Parliamentary Inquiry into Workplace Bullying has been released to the public. Again, the public hearings provide important insights, not necessarily into the hazard of workplace bullying, but the perception of the hazard of workplace bullying.
The transcript of the public hearing in Hobart starts with a presentation from Kevin Harkins, the Secretary of Unions Tasmania. Harkins says
“… that the face of bullying in the workplace has changed. There used to be traditional initiation type processes that we are all aware of from media reports. I think it has all moved to a more complex state now: bullying in the workplace largely by workplace psychopaths. While companies have policies in place to combat bullying in the workplace, I think that in the main they are token attempts to do nothing or to cover what happens in the workplace.”
It may be that the initiation rituals where apprentices were set on fire or hung from a crane may have declined but it is concerning if the trade union movement relies on media reports for evidence of the decline in abuse.
Blame the Worker
It is also worrying if the unions have bought into the psychological assessment of workplace bullying and personality types, as indicated by the “psychopath” description. The categorisation of personality types may be valid but there is an implication that the personality type is unlikely to be able to be changed. If the union movement is against the “blame the worker” argument, it should be equally against “blame the psychopath”.
The current belief in the investigation of workplace bullying is that some workplaces have a culture of bullying, or an unsafe system of work, and that this culture, and not the individuals, should be targeted for change.
Bullying and Industrial Relations
Sadly, Harkins also displays a preference to address workplace bullying through the industrial relations network of Fair Work Australia, the same comfort zone as the employer groups have displayed in this inquiry. Harkins’ argument was that the OHS regulator in Tasmania
“Workplace Standards Tasmania… do not have a resource or an ability to prosecute over bullying and harassment cases. They may obviously disagree with that, but in the main they do not have an ability.”
When asked about this statement, Harkins focussed on the inability of Workplace Standards Tasmania (WST) to prosecute bullying infringements. This may be the case but what about their capacity to support the prevention of workplace bullying? Again, the industrial focus shows great faith in the power of prosecution and sees prosecution as a major tool in injury prevention. There is little evidence that any Australian workplace bullying prosecution has generated a reduction in bullying. Although I would suggest there is plenty of evidence that prosecutions led to many requests to legal firms for advice which resulted in policies about respect and dignity but little preventive action or cultural change.
Union Bullying
Some trade unions are in a difficult position on workplace bullying due to the alleged actions of some of its union representatives. The CFMEU in Tasmania was accused of bullying on 25 July 2012. West Australian unionist Joe McDonald, was arrested over alleged bullying in 2011. A transcript of a site visit illustrates many of the concerns business groups have about the Union Right of Entry and its blurring of industrial relations and OHS. (Audio is available of this exchange)
In 2004, the Australian Manufacturing Workers’ Union expelled its former Victorian Secretary Craig Johnston over sexual harassment. Johnston was accused of bullying in 2008 but most Victorians would remember Johnston’s “violent workplace invasions” of 2001 for which he was imprisoned. Some of these accusations have been dismissed and some proven but, regardless, the Australian community continues to believe that many unions are militant and as such union pledges to combat workplace bullying are often poorly received or even scoffed at. The unions need to argue against the hazards of workplace bullying from outside the industrial relations context and from the high moral ground in order to counter the perception of hypocrisy.
Harkins and his Senior Vice President, Nicole Wells, reiterated the trade union belief that any national Code of Practice on Workplace Bullying needs to have the status of regulations. This is unlikely to happen if one considers the same argument was fought around 2000 in Victoria in the development of its workplace bullying code which was weakened even further by being issued as a guideline!! At a time when business interests have the ear of government over “unnecessary” regulatory red tape, workplace bullying regulations are highly unlikely.
“Hush Money”
Wells’ presentation illustrated a problem with how many cases of workplace bullying are settled and why there is little OHS case-law on, specifically, workplace bullying. Wells said:
“…the problem that I see with all of these issues is that what usually happens is that the complainant settles for some amount of money, which is hush money. It all has to be completely confidential. It is all covered up. ….
So we have a system which encourages secrecy and encourages people to make confidential settlements, and usually those confidential settlements involve that person never returning to the workplace. We have a system where it is in the employer’s interest to pay out money and not have the problem back in the workplace. The managers who created the problem usually remain within the organisation, often not having training. So the system is completely broken.”
Wells could have added that such legal “solutions” are usually seen as harassment settlements, or through unfair dismissals rather than as an occupational health and safety issue. (One workplace bullying case she mentions was undertaken through the Anti-Discrimination Commission.) As such, much of the OHS preventative benefit, of what little there is, is lost and businesses again turn to workplace bullying policies and reputational risk management strategies instead of undertaking organisational change to eliminate the psychosocial hazard from the workplace.
It appears that the Tasmanian trade unions have not heard about the application of Restorative Justice to workplace bullying or unfair dismissals, or do not see the relevance.
Bullying and Unfair Dismissals
Committee Member Rowan Ramsay (Liberal Party) put to Wells and Harkins, the employers’ beliefs that unfair dismissal processes, where workplace bullying accusations often end up, often leads to workers not wanting to return to the workplace. In his words, the employers believe that
“in the end they have got to go through the court process and in the end they pay the money and get people to leave”.
Part of Nicole Wells’ response to Ramsay’s questions was the need for
“an independent body that has the authority to come in and actually deal with these matters maybe they would feel—although I do not know—more comfortable about the fact of having an independent authority that can assist in making these decisions and that can also then assist in providing evidence in any of these matters which these people may then attempt to take to Fair Work.”
When queried on her meaning of an “independent body” she admitted she had not considered the issue in-depth but suggested it be outside Fair Work Australia, harking back to recommendations put to this Committee in Melbourne by Moira Rayner. It is a fair bet that once the union movement carefully considers such an independent body, they will recommend a tripartite structure, even if the Committee were to recommend a broader representation.
Inter-agency Cooperation
The public hearing in Hobart was not only attended by trade union representatives. The Operations Director of Workplace Standards Tasmania, Neale Buchanan, and the Anti-Discrimination Commissioner (ADC), Robin Banks, also attended.
Buchanan supported many of the points made by Kevin Harkins about WST. Although he did not say which points, he may have been acknowledging a lack of inspectorial resources. He did not indicate support for regulations about workplace bullying but did state it would be
“…an important step forward if that code of practice has some teeth in it—if it is not couched in vague and wishy-washy terms.”
It could be argued that best way to provide a dentally rigorous code of practice would be to make it an enforceable regulation.
The joint presence allowed for some discussion about the relationship between the two Tasmanian Government agencies. Committee member Mike Symon (Australian Labor Party) asked Buchanan specifically:
“Is there a time or a place when you pass complaints over to the ADC? Does that happen on an informal or formal basis?”
Buchanan admitted that WST “can do it better”. Buchanan outlined the confusing filtering process on workplace bullying, a process that if unclear to the Regulator would be horrendous for a bullied person to navigate:
“One of our first steps when we get a complaint is to consider: was this matter something that might have been better dealt with by the police—has there been an assault—and we may refer that person down that path. The other question is, ‘Has there been unlawful discrimination,’ in which case we would refer them to Robin. We had a really strong recent case that I looked at and thought, ‘In many respects, I’d like to take this on,’ but the issue was about gender discrimination, bullying manifesting itself that way, and we pushed that one towards Robin. I think there is a better process we can follow, though. We tend to give them the details and say, ‘Here you are; this is where you find these people.’ I think we could have a better process between us for how we refer these things over.”
If this is the assessment process, the “triage”, bring on an independent agency that specialises in identifying, handling and prosecuting workplace bullies.
Buchanan failed to inspire confidence when asked about the two “‘experts’ on workplace bullying” available to WST and the level of specialised training they have in workplace bullying. According to Hansard, Buchanan said:
“They have been to a lot of seminars. I am not sure. The one I would call our expert was an expert when I arrived. But, in terms of formal training, I know he has been through a lot of different seminars. It is also a personal interest of his, and that is why we tend to go to him.”
Seminars, the key to expertise, apparently.
Still waiting on my hush money from my former employer who allowed and participated in my bullying. Their day will come and it will hurt all the more for their failure to protect the victim (myself) and held onto the bully, going so far as to join in at the end.
Describing a settlement as \’hush money\’ is a pejorative or loaded term; that is we use it to colour the discussion and to show disapproval. As noted the entire legal system is directed to encouraging settlement of cases whether its negligence law, administrative law, land use planning, OHS, crime etc. If every case was run before a court then the court\’s would fall over. But settling necessarily involves compromise, and a defendant that thinks they didn\’t do anything wrong, or at least not as wrong as the claimant makes out, settles but usually without admitting liability and on the basis that the terms of the settlement aren\’t to be disclosed. That has value too, you don\’t want to encourage people to realise that it really is cheaper to settle than fight some cases so even unmeritorious claims are likely to get some offer.
The lessons to be learned in any court case are lost in the process but equally litigation is not an effective tool for that process; court cases are adversarial where it is up to the parties to present their evidence, and neither party may be presenting the \’whole\’ truth; and the issue for the court is not what happened but has the claiming party established their case to the required legal standard.
So cases do settle on terms that the are to be kept confidential, but whether that\’s accurately called \’hush money\’ or a \’fair and just compromise\’ reflects more the commentators attitude rather than an accurate description of what\’s happened.
Not at all like John Howards \”relaxed and comfortable\” approach to waterfront industrial relations, eh Brad?
By the time that regulators and courts become involved it\’s too late. The parties are entrenched. Management don\’t want the employee any more and the employee doesn\’t want to be in with those managers any more. This applies irrespective of the rights or wrongs of the case or whether the employee was being bullied by a colleague, or being bullied by a manager, or whether the employee was actually the bully and has claimed bullying when actually being performance managed.
In this context, the notion of restorative justice is silly.
The power relationships and toxic workplace situation mean there\’s almost no options.
A payout so everyone can move on is the practical solution.
Having spent 26years on the tools as a self employed contract carpenter, I was subjected to bullying and harassment in the workplace primarily by the unions (BLF) and their representatives. This included their efforts to black ban me on union sites and with employers that employed union members.
I find it extremely hypocritical of the unions to be parading out bullying and harassment in the workplace when they were the biggest bullies on the block. Their use of standover and harassing tactics have long been their modus operandi and as I see it, not a lot has changed.