Australian Government shifts workplace bullying into the industrial relations system

Politicians are sufficiently media-savvy to release policies and information to gain the maximum exposure in the media cycle.  For some reason, Australia’s Workplace Relations Minister, Bill Shorten, missed the opportunity to have his changes on workplace bullying in the newspapers for 12 February 2013.  The news cycle is also being dominated by the resignation of Pope Benedict.  However Shorten’s response to the Parliamentary Inquiry into Workplace Bullying deserves detailed analysis.

Shorten is bringing the investigation of workplace bullying cases under the Fair Work Commission.  There are likely to be complex consequences of this decision, a decision that is clearly the Minister’s as the Parliamentary Inquiry made no clear recommendation on the location of the “new national service”.

“The Committee did not receive evidence on where such a service [“a single, national service to provide advice to employers and workers alike on how to prevent, and respond to workplace bullying” 5.51, page 136] should be located.  It might be best situated within an existing government agency or department such as Safe Work Australia, the Fair Work Ombudsman or the Department of Education, Employment and Workplace Relations.  It may also be considered appropriate for the service to be an independent body that is funded by the Commonwealth. Consequently, the Committee does not have a clear recommendation as to where the new national service may sit.” (Section 5.58, page 138)

Clearly Shorten’s announcement could easily have been “Minister rejects independent body on workplace bullying”.  The Minister should be asked about his reasons for not establishing an independent body into this important issue.  It is easier to understand him not giving his department the role as it has demonstrated a flawed understanding of OHS in the past and Ministers are often held to be responsible for departmental cock-ups.  But why not give the role to Safe Work Australia (SWA), an agency that is providing national guidance on how to prevent workplace bullying?

Shorten said this on ABCNews24 this morning in explaining what was wrong with the existing system (transcript not available online):

“Well, there are state regulators, so being a federation made up of former colonies every state does something different. And what we have is safety regulators – and I think they’re doing the best they can with the resources they can – but we have a Fair Work Commission. Workplace relations is, increasingly, a matter upon which there is national law, and we should have a national solution to complement what the safety regulators are already doing.’ [emphasis added]

The quote above indicates State OHS regulators are under-resourced on tackling workplace bullying.  The magnitude of the call centre and help line activity has been discussed previously by WorkSafe Victoria, in particular, but also in submissions to the inquiry.  The government needs to explain why it moved bullying to the FWC instead of increasing resources to the State OHS regulators?

Shorten sees the new Fair Work Commission role as complementing State regulators but Shorten’s comments are implying that the FWC will have the lead role and perhaps pass on cases to the State regulators.  Who is the dog and who is the tail is unclear.

Significantly, though, at a lunchtime press conference in Canberra, Amanda Rishworth, the chair of the Parliamentary Inquiry, and Minister Shorten, were asked how prevalent bullying is in the workplace.  Rishworth said that this could not be determined.  (If it can’t be measured, it can’t be managed?)  A major weakness of the inquiry was that it could not provide details of the size or cost of the workplace bullying problem in Australia.  That wasn’t from wont of trying as the question came up repeatedly in the inquiry’s hearings.

ABCNews24 asked the Minister about frivolous workplace bullying claims, an issue addressed in the Parliamentary Inquiry report.  Shorten stated that reasonable management of performance is unlikely to constitute bullying but perhaps the significance is in the question, a question repeatedly asked of the Minister.  The media sees workplace bullying claims as making trouble or as misunderstandings, personal clashes or being overly sensitive.  There is a serious misperception of workplace bullying in the media and this can readily be extended to OHS as a whole.  OHS is seen as a disruption to business instead of part of business.  This perception is there in the questions and the tones of the interviewers.

The Minister’s media release provides a more rounded package of interventions than the media reports suggest: states

“The Government’s response supports measures to adopt a national definition of workplace bullying, to promote education and awareness of what constitutes workplace bullying and to lead the development of national training standards to improve responses to bullying complaints.”

There is very little in the media release to indicate how workplace bullying will be prevented and this is a major weakness of this embryonic strategy.  The Australian Council of Trade Unions, mostly happy with the Minister’s decision as it places workplace bullying in a legal structure that the ACTU is enormously familiar with (others may say manipulative), at least acknowledges that bullying needs prevention:

“But no matter what the laws, employers must be accountable for providing safe workplaces in which bullying does not occur in the first place.”

It was clear from the inquiry, submissions and hearings that a quick or timely investigation and resolution to workplace is required as the longer the mental anguish continues, the greater the personal consequences.  The media statement says that

“Other recommendations supported by the Government include Safe Work Australia developing materials for employers that provide advice on preventing and responding to workplace bullying.

Safe Work Australia will also work with the states and territories to develop nationally accredited training for managers and health and safety representatives to help them deal with bullying.”

SWA is already developing a National Code but it has almost always been the States that have taken the lead on workplace bullying advice.

Another weakness is that any training MUST be fully supported by employers and their industry associations.  And, again, the training is for “dealing” with bullying and not preventing it.

The Government will need to amend the Fair Work Act to implement its plans.

“Today’s announcement to empower the Fair Work Commission to deal with bullying complaints will provide an accessible, affordable and timely pathway to help resolve bullying matters for workers and employers.”

The words highlighted above are the measures that will need to be applied to determine the success of the Government’s workplace bullying strategy.  The FWC is a national body with State presence.  It will need additional resources to ensure workers and others can access their services and those services must be effective and efficient.  It is unlikely that in this period of red tape obsession, that State workplace bullying services will be duplicated so will the resources transfer to the FWC or will the FWC delegate to the State resources, resources that Shorten has admitted are under-resourced?

Affordability will be crucial as many of the workers seeking justice will be mentally fragile and may already be on workers’ compensation.  If legal representation is needed, who will pay?  A better way to achieve affordability, and  timeliness, is by structuring a suitable mediation service that minimises, if not removes, the need for legal representation.  When one has been subjected to behaviour that one sees as unjust, legal jousting will not help.

The Minister’s announcement is less that 24 hours old and, at the time of writing, the industry associations and conservative organisations are yet to make comment.  Analysis will come but this will be from the usual suspects and through the prism of industrial relations.  The safety profession needs to step up on this issue and reclaim some control of the management of workplace bullying.  It needs to emphasis the hierarchy of controls and the aims of the Work Health and Safety Act that seek to eliminate hazards and harm.

Kevin Jones