Law reform does not prevent harm, only compensates for it

Josh Bornstein is a media-savvy lawyer with Maurice Blackburn who has gained some prominence on the matter of workplace bullying.  A week ago Bornstein spoke at a Legalwise seminar in Melbourne Australia and he has yet to stop running on his topic of discussion – “Disproving the seven myths about workplace bullying”.  Today he released a video of his presentation on the Maurice Blackburn YouTube channel.  The speech from the seminar is HERE.

Lawyers advise that words and statements are very important.  Documents and presentations are deconstructed for nuance and alternate interpretations.  Context is also vitally important to determine why something was said when it was said and why it was said.  These tools are equally useful for Bornstein’s presentation.

The media release by his own law firm provides some of the context.  Through media releases Bornstein gains media attention for his firm, himself and, potentially, his clients. This has been evident in earlier media actions.

It appears there is no record of Bornstein or Maurice Blackburn making a presentation to any of the public hearings of the Parliamentary Inquiry into Workplace Bullying. The Inquiry’s secretariat cannot reveal if either made a formal submission and there is none from Bornstein or the firm currently listed on the Inquiry’s submissions page. This is surprising as the policy makers provide an opportunity for direct public discussion on workplace bullying and yet a prominent legal expert on the issue makes no direct contribution.  A Maurice Blackburn representative has confirmed to SafetyAtWorkBlog there was no submission or appearance but that this was due to workload and that the Government is well aware of Josh Bornstein’s thoughts on the issue.

Bornstein discusses several myths of workplace bullying.  In his speech, he says

“This myth that bullying in the workplace is illegal is the one I am most frequently confronted with in my legal practise representing employees. Many employees assume that bullying, per se, is unlawful and actionable. They are both surprised and disappointed when I explain that the assumption is wrong.

Contrary to popular belief and despite the apparent scale of the phenomenon, there is no statutory scheme in Australia that proscribes bullying. The lack of a law that explicitly deals with workplace bullying is anomalous for reasons I will deal with later.”

He is right but look at what he does not say.  Bullying may not be illegal as Bornstein understands legality, but, according to the safety profession, it is legislatively wrong to have an unsafe workplace.  For several decades it has been wrong to harm a work colleague or oneself at work.  For over ten years, workplace bullying and occupational violence has been recognised as wrong by WorkSafe Victoria to the extent that guidance on these matters were published, widely distributed and broadly discussed.

Whether the there is a “statutory scheme … that proscribes bullying” is irrelevant to everyone except for those who seek legal loopholes.

Bornstein acknowledges that

“Workplace bullying may involve a breach of Occupational Health and Safety (”OHS”) legislation. Again, bullying is not expressly dealt with in OHS legislation. [So What?!] Rather, an employer or individual employees may be prosecuted for breaching the requirement to maintain a safe workplace.”

It could be a myth that workplace bullying is “illegal” but it is still wrong, and OHS regulators prosecute over the issue, and companies have policies demanding its exclusion from workplaces, because it is wrong.

Bornstein advocates that

“One of the keys to sensible legislative and policy reform on workplace bullying is to remove it from its current legal and cultural designation as an occupational health and safety issue.”

Some OHS inspectors would be happy to have their workload lightened.

Bornstein is very critical of WorkSafe for several reasons but he fails to mention any of his previous dealings with the organisation.  He fails to mention that he represented “Former WorkSafe health adviser Jillian Ramsden [who] ….. lodged her dismissal claim in July 2011 based on allegations of bullying at WorkSafe”.  He was not obliged to mention details but he should have acknowledged his “history” with WorkSafe Victoria.

His suggestion to remove workplace bullying from OHS may sound reasonable but the alternative he suggests, the Fair Work Act, is likely to make it more difficult and more costly for psychologically injured worker to seek justice and to gain compensation.  Part of the reason for placing workplace bullying within the OHS stream is for the application of strategies to prevent bullying and to make compensation available if necessary.  The Fair Work Act has no role for preventing psychological harm and remediation and justice could only be effectively sought through lawyers.

The recently displayed investigative skills of Fair Work Australia do little to instill confidence that psychosocial safety matters would be better handled than by the OHS regulator.

Bornstein is right in saying that an anti-bullying prevents workplace bullying however it could be argued that the need for a policy as the first step to controlling a hazard has been long advocated by lawyers.  It is often left to a poorly resourced OHS or Human Resource professional to apply and enforce the policy. Bornstein states that:

“There is a fundamental ambivalence about bullying in our society which deserves a far more profound analysis than I can provide today. When we are confronted with strong examples of bullying, we tend to abhor it. At the same time, we reward many of those who are particularly adept at perpetrating it.”

[This is a perspective that Australia’s Liberal Party leader, Tony Abbott, continues to face]

Yet he can provide no strategy for cultural change outside of legal mechanisms.  This is the area where innovative preventative thinking needs to occur on workplace bullying and it is an area that the Parliamentary Inquiry is trying to address.

Bornstein sees change in this area only through law reform.  He says:

“The political climate is ripe for a push for significant law reform in this area. It is evident that the current legal system does little to afford victims of workplace bullying with effective options to address the situation.”

But he is looking at the remedial process and not the prevention and this is where his argument is weakest. The current legal system may be less effective in this area than it should be but Bornstein offers no preventative strategy that does not include a damaged person or worker.  Workplace health and safety aims at preventing harm and not just learning from mistakes because each of those mistakes is a damaged person.

Bornstein’s approach also fails to realise that workplace bullying can be caused by issues other than personality conflict, such as stress and organisational dysfunction.  His proposed strategy does not address these overall societal factors.

If an OHS regulator is ineffective in dealing with a workplace hazard or, rather, failing in changing a risky behaviour by employers and workers, there is little sustainable benefit in moving the issue into a different regulatory stream.  The OHS regulator needs to change, needs to be adequately resourced and must develop new strategies to prevent psychosocial harm.  The government needs to look to an integrated approach across turfs and jurisdictions and disciplines.

Strategies for this hazard do exist, as seen in England by the work of Dame Carol Black and others, but they challenge the way we do business and the way we regulate corporate and individual behaviours and, often, the way lawyers ply their trade.  But if we have a genuine desire or moral obligation to reduce harm, this is the path that must be followed.

Kevin Jones

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