Legal changes on workplace bullying are forgetting the workers

The lower house (thanks, Rex) of the Australian Parliament has passed amendments to its industrial relations laws, the Fair Work Act, to allow for matters concerning workplace bullying to be heard in its Commission, once the laws pass the Senate.. But recent media and parliamentary discussion on this action seems to forgotten the welfare of the bullied workers.

Professor Andrew Stewart of the University of Adelaide is reported to have said that there is a risk that the Fair Work Commission will be “swamped” with bullying complaints and that a system of filtering should be applied. Such a mechanism is supported by Professor Ron McCallum who said in The Australian on 14 June 2013:

“I would agree with the Coalition that there should be some filtering mechanism because we don’t know how many complaints there are going to be,” he said. “There’s been wildly varying suggestions.

It seems to me that it would make sense for people to, at least, go to someone like the workplace ombudsman to have an examination of their complaint, just to speak to somebody about it.

“Often the majority of these complaints are likely to be unrepresented and it often helps for them to see someone with legal or other understandings. What you will find when people come and see those people is about half of them will withdraw their complaints.”

How big is the workplace bullying issue?

Most of the recent discussion on this topic (if one removes the election-related content) relates to the Fair Work Commission’s capacity to cope with an expected influx of bullying calls. However there is confusion over the level of this potential as touched on by McCallum.

In hearings of the Senate Estimates Committee on 4 June 2013, Liberal Senator Eric Abetz quoted some statistics:

“But we were told—and this is a figure that I think was plucked out of thin air—that they were expecting about 3½ thousand applications per annum relating to bullying…”

Mr John Kovacic, Deputy Secretary of the Department of Education, Employment and Workplace Relations (DEEWR) clarified the information from the Fair Work Commission (FWC):

“…. that the Productivity Commission in its report on bullying estimated the number of bullying incidences at the bottom end of the range. It was in the order of 350,000. Drawing on the commission’s experience in the unfair dismissal jurisdiction—where about one per cent of employees make unfair dismissal claims—that was applied to the 350,000, which gives you the figure of 3,500.”

The issue of the volume of bullying calls to regulators, or the magnitude of workplace bullying, has been mentioned previously in SafetyAtWorkBlog where WorkSafe Victoria provided statistics indicating that of one’s years calls on workplace bullying, only 10% warranted investigation and only 1% generated visits by inspectors to the workplace.

There is much more involved with making a workplace bullying claim to the FWC than there is to a simple phone call to WorkSafe Victoria but if these percentages were comparable to workplace bullying claims lodged with the FWC, proven cases of workplace bullying may be, in reality, very low.

The important fact is that no one knows the magnitude of workplace bullying and therefore the allocation of resources by government cannot be accurately determined. In the public policy realm of workplace bullying, the government seems to be at the stage of “suck it and see”.

Filtering

The argument for a filtering process is similar to that put to the 2012 Parliament Inquiry into Workplace Bullying by several people, who suggested an independent body or a “commissioner” be established to be the focal point for bullying enquiries. There are strong arguments in favour of such a commission or independent body, even though it has been acknowledged that such things are unpopular in the legal sector and probably the political sector.

A Workplace Bullying body could provide the independent filter through which workplace bullying complaints can be “triage-d” and referred to well-established regulatory bodies that would provide the best chance for resolution. These bodies could be the local OHS regulator or perhaps an equal opportunity or discrimination authority such as that in Victoria or the Australian Human Rights Commission, or eventually the FWC. Such a “commission” does not require any specific investigative authority but should be able to provide a basic assessment and support services as a claim moves toward investigation and resolution.

This may seem to be an additional administrative burden but having a body focused specifically on workplace bullying, and “branded” as such, allows the community to understand that a claim of workplace bullying starts here rather than being made shopped out to a range of tribunals and commissions where the claim might be an ill fit. This vagueness to claims of workplace bullying has been recognised in the Safe Work Australia draft code on workplace bullying where what is NOT bullying is emphasised. Someone subjected to workplace bullying may have difficulty determining which avenue of remedy can best handle their experience when, to them, that experience is simply bullying. This doubt and confusion would be removed by having a clear process or body for workplace bullying issues.

Worker Impacts under the new IR Laws

The point the Federal Government seems to be missing in its placement of workplace bullying under Fair Work legislation is that the industrial relations process under Fair Work is intimidating to most workers and would be frightening to a worker who feels they have already been psychologically harmed through workplace bullying. This fear and vulnerability has not been given the prominence required.

There is an assumption that claimants through the FWC will be supported by a lawyer, a union or other representative. This should not necessarily be the case and assessing a bullying claim outside the industrial relations context has the attraction of providing the claimant support and guidance under existing non-combative processes established under commissions and tribunals such as the Australian Human Rights Commission.

At the moment there is too much political focus of the administrative process for workplace bullying claims and hardly any focus on how such processes may affect the claimants who are likely to be in a distressed state. The Parliamentary Inquiry into workplace bullying heard many heartbreaking cases where the psychological harm from bullying was exacerbated by the intimidating and complex processes on the path to remediation. These stories have been lost in the current debate.

The operation of the new workplace bullying provisions of the Fair Work Act seems to have been pushed out to 1 January 2014 which addresses the tight timeframe mentioned in the Senate Estimates Committee but also places this operation after the next Federal election. Whichever political party has the carriage of these new laws in a few months time, it seems likely that the experience of bullied workers to seek some justice for the harm they have suffered is going to be just as convoluted as the current process, perhaps even moreso.

Kevin Jones

reservoir, victoria, australia

4 thoughts on “Legal changes on workplace bullying are forgetting the workers”

  1. How often does the complainant get fired or moved? More often than the bully in my experience.

    Classical bullying, i.e. one on one and overt, seems to be becoming rarer but the more subtle methods seem to be more prevalent and harder to smoke out. These include mobbing (group bullying), exclusion, isolation, unfavorable rostering, \”mistakes\” in pay, the effects of Groupthink on people who attempt to dissent, denigration of academic qualifications etc.

    Some thoughts.

    An organisation is almost always more likely to disadvantage the individual over a group, as the Defence Force revelations typify. As far as perpetrating bullying, there is safety in numbers and hierarchy.

    Bullying breaks spirits. The filtering mechanism, if insensitive, could also compound that issue with decreasing the sensitivity to troubled people as a type of battle fatigue could ensue in those who need to filter complaints in large numbers from very distressed persons.

    The types of campaigns that have made drink driving socially unacceptable may work for bullying if there is a dedicated and sustained programme.

    How about a funding programme to help transition and re-skill workers who are being bullied and who will never work in the organisation again?

    How about those organisations with large bullying volumes paying a special premium commensurate with the damage that is being caused by their operations.

    To quote Al Pacino from Scent of a Woman \”there is no prosthetic for a broken spirit\”.

  2. On the other hand, complexity arises because some people use the system to perpetuate their behaviour. I understand that about a quarter of bullying complaints received are from the perpetrator, not the victim.

  3. Hi Kevin this is a good article. Minor point to note is the amendments haven\’t passed the Parliament … have only passed the House of Representatives and are still to be considered by the Senate
    Regards
    Rex Hoy

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