According to the Canberra Times, a company board has been served with an improvement notice over inadequate attention to workplace bullying claims in a retirement home. The ABC television program, 7.30, has followed up workplace bullying claims aired earlier this month with a further case on 25 September 2012 with savage criticism of WorkSafe Victoria’s actions in the case.
The Australian Government has completed the public hearings of its Parliamentary Inquiry into workplace bullying. Bullying is everywhere but little seems to be happening to address the various elements and deficiencies of the regulatory system.
On 21 September 2012 the WorkSafe ACT Commissioner warned about inaction on workplace bullying:
“If bullying has not occurred, then a properly conducted investigation should find that… If, on the other hand, an independent investigation substantiates the allegations, then the employer will be in a position to act to protect their workers from any ongoing threat to their health and safety.”
The clear implication in this statement is that the board of the Morshead retirement village is that the board was informed of allegations of workplace bullying but failed to act. The significance of an improvement notice being lodged against a Board and not the Person Conducting a Business or Undertaking (PCBU) under the Work Health and Safety laws is discussed further by lawyer Graham Dent in his LinkedIn forum. The facility’s website states its values as
“Compassion – Accepting individuals as they are and being present in times of changing needs Accountability– Caring, skilled staff and responsible management, supporting team members to take personal and professional responsibility Respect – Treating residents and staff equally, with dignity respect, and justice. We aim to meet the evolving and diverse needs of our residents. Eden Philosophy – Seeks to eliminate loneliness, helplessness and boredom providing a comfortable friendly home environment.” (emphasis added)
Being active on safety or reactive on safety seems to be far less serious that being inactive on safety. The president of the board, John King, and the CEO of Morshead were contacted for comment.
7.30’s report included several talking heads, including Minister Bill Shorten, discussing options for new legal approaches for addressing workplace bullying but few suggestions for reducing the incidence of workplace bullying. On this issue few extend suggestions beyond prosecution and punishment but it is accepted that this type of penalty has limited deterrent value. The mother of the young apprentice in tonight’s 7.30 article was angry at her son’s employer and work colleagues but her anger was exacerbated into outrage at the betrayal felt over WorkSafe’s investigation of her son’s allegations.
OHS regulators need additional resources and a new skill set to be able to address workplace bullying to the expectations of the community. Moving the pursuit of justice into the sector of no-fee, no-win lawyers is short-sighted and likely to lead to more conflict and dissatisfaction, as evidenced on some web blogs.
The establishment of an independent tribunal to hear workplace bullying allegations, as advocated by many in the Parliamentary Inquiry and elsewhere, has considerable merit but is likely to face the same resource limitations as the OHS regulators. A “toothless tiger” of a tribunal would simple encourage outrage.
Workplace bullying can be addressed through OHS mechanisms and the solid work on this hazard in Australia over at least a decade should not be ejected but OHS regulators are often hamstrung by more than inadequate resources. As in the WorkSafe ACT case, many perceive the responsibility for a safe workplace as sitting with the regulator and compliance coming through the activities of that regulator. The principal safety role and duty of the employer has been eroded and the new mystical concept of the PCBU is not helping.
Regulators can often do little more that advise, assess, or recommend as they investigate non-visible workplace injuries and incidents.
The Under-emphasised Role of the Employer and PCBU
The crucial role of the employer or PCBU in workplace bullying is often underplayed as many of the control measures relate to this amorphous matter of workplace culture that no one can readily describe, let alone explain it in such a way that employers can identify their damaging culture or measure any improvements in their culture. And, anyway why should employers be responsible for the societal microcosm of the workplace?
OHS regulators have failed to provide any useful guidance on the meaning and importance of a positive and safe workplace culture. Even Safe Work Australia has no immediate plans for such a Code through the harmonisation process. There are bits and pieces in the public sector but no coordinated strategy or guidance. Some of those cultural strategies include the 2012 Code of Conduct from the New South Wales Ministry of Health, Queensland’s Code of Practice on Workplace Harassment from 2004, or Queensland Health’s 2011 Code of Conduct.
Internationally there is more useful information but how successful these have been is hard to determine. HSE in Dublin released a publication in October 2011 called “Creating a Positive Work Environment – A Line Manager Guide to Conflict Management and creating a Positive Work Environment“. The European Union released a cultural assessment report in 2011 called “Occupational Safety and Health culture assessment – A review of main approaches and selected tools“.
Safe Work Australia’s second go at a Code on Workplace Bullying was due by the end of 2012 and, even though the Government linked the Parliamentary Inquiry to this Code of Practice, the timetable for publication is unclear. Even when this is released, it is likely to still deal with one particular psycho-social hazard instead of tackling the broader societal risk of mental health, a hazard that only yesterday was described by a European Parliamentarianas needing to be classified as an “occupational disease”.
Within the next couple of years Australia needs
- an independent workplace bullying tribunal to give people justice;
- increased skills and resources for OHS regulators to determine evidence; and
- a focussed national strategy on addressing mental health specifically in the workplace, building on the excellent work undertaken by Pat McGorry and others in 2010/11.
Most of all Australia needs leadership on this issue. To do any less would be societally negligent.