The period for public comment on Australia’s latest draft of its workplace bullying code has completed. The available submissions are online. The submissions from several employer and industry associations reveal an ideological stance on workplace bullying that should generate great concern by OHS professionals and regulators as they impede change by missing the real purpose of the workplace bullying code.
Code or Guidance
One of those submission is that of the Australian Mines and Metals Association‘s (AMMA). One of the AMMA’s key points on the draft code is that:
“The type of information contained in this document should not be in a code but in guidance material to allow more flexible responses;”
This point has been made many times before and most vehemently when WorkSafe Victoria introduced its workplace bullying guidance well over a decade ago. The Victorian experience is that a workplace bullying guidance has made very little difference to the management of bullying. The bullying cause celebre in Victoria has been the death of Brodie Panlock and the prosecution of the bullies, which occurred only after a coronial inquiry. This incident occurred during the operation of WorkSafe’s bullying guidance. One could ask if the bullying would have been less likely to occur if the guidance had been a Code? A further question could be whether the prosecution of the bullies would have occurred more promptly or the penalties more severe if the guidance had been a code of practice?
Flexibility or Inaction
The AMMA comment above reflects a definition of flexibility that is common in the business sector. “A more flexible response” can be interpreted as doing nothing, or as little as possible, to address the issue. A Code of Practice, an OHS document that can be used in a court of law to clarify OHS responsibilities and state of knowledge, would mean that an issue would need to be addressed. A Code establishes a level of preventative action that businesses and workers would need to meet in order to show that they comply with OHS laws.
Red Tape argument misses the point
Industry groups, such as AMMA, are stating that a Code of Practice is a further example of bureaucratic red-tape.
“The draft code of practice, Preventing and responding to workplace bullying, significantly increases the level of regulation for employers (PCBUs) around bullying complaints” (page ii, AMMA submission)
This key point in the AMMA submission is significant in that it displays AMMA’s major focus in the workplace bullying debate. The comment is not concerned with harm prevention but with the paperwork associated with “bullying complaints”. The AMMA. and several of its industry colleagues, seem to miss the first word of the Code’s title “preventing and responding to workplace bullying”. It is not a draft code of preventing paperwork. The draft code’s scope states that
“This Code provides guidance for persons conducting a business or undertaking and managers on how to prevent workplace bullying and how to respond if it does occur.” (page 5)
Small business furphy
This fundamental misunderstanding causes other unrelated matters to enter the workplace bullying discussion even though they are irrelevant. For instance the AMMA identifies another key point in its submission:
“Employers of all shapes and sizes will find it extremely difficult to comply with the draft code in its current form but there appears to be a complete disregard for the limited resources available to small business;” (page ii)
The resource status of small business is often raised when arguing against regulation but the AMMA’s point is based on the paperwork and costs associated with bullying complaints. The AMMA and others need to be reminded of the hierarchy of controls applied under the various OHS/WHS laws, Codes Regulations and guidances. The first control is “elimination” of a hazard, in this case workplace bullying. The AMMA’s submission seems to concede that workplace bullying cannot be eliminated.
Workplace bullying is a complex area of personnel management but the first step to its prevention is relatively simple. Treat people with respect.
“The statement The risk of workplace bullying can be eliminated or minimised by creating a work environment where everyone treats each other with dignity and respect is superficially sound. However, at a practical level, it suggests that an individual is less likely to bully or harass in such an environment. We would dispute that. Bullying is a human behaviour, not an environmental factor.” (page 2, emphasis added)
To NCSI dignity and respect seem to be ideologically sound but cannot be applied in practice in the workplace! The position put forward by Safe Work Australia in the draft code is based on years of experience, research and public hearings into workplace bullying. If NCSI disputes this position, it needs to provide research to substantiate it. Its statement that “bullying is a human behaviour, not an environmental factor” also needs challenging.
“The assertion that The risk of workplace bullying can be eliminated or minimised by creating a work environment where everyone treats each other with dignity and respect is suspect in our view. Certainly it is necessary to try to create an atmosphere of respect and understanding. But it goes too far by inferring that an individual will not, or at least is less likely to exhibit bullying or harassment behaviour in such an environment. Bullying is primarily a human behaviour, and will not be entirely prevented by the cultural ‘atmosphere’. In fact, some bullies thrive on what they see as a ‘soft’ environment.”
“While this statement suggests an example of good behaviour i.e. “dignity and respect”, this statement is inappropriate for inclusion in the code, as it may give rise to circumstances whereby the level of dignity and respect displayed by workers at a workplace is judged at a court of law. This entails a very subjective measurement and must be deleted.” (page 3)
This is a curious argument against dignity and respect at work and again indicates a focus by an industry/employer association on post-incident damage limitation rather than harm reduction.
Elsewhere in the AIGroup submission ( page 5) the AIGroup
“dignity and respect”, …can only be measured by a person’s subjective understanding of the workplace. The words “dignity” and “respect” are not defined within WHS and/or industrial law and their inclusion in a code or guidance would subject employers to impossible measures.”
If one should only using words that are defined in WHS or industrial law, then the exact term of “flexibility” should similarly be avoided. It is difficult to understand the calling for ‘ a common sense’ approach to OHS from the business sector if legal definitions are the criterion for inclusion or exclusion.
Not all employer associations seem to be as critical of dignity and respect. The Victorian Employers Chamber of Commerce and Industry (VECCI) in its submission says it:
“… agrees with the creation of workplaces where, so far as is reasonably practicable, everyone is treated with dignity and respect and we develop productive and respectful relationships within the workplace. We also agree that systems of work should be safely designed and that workplaces should implement a workplace bullying policy, reporting and response procedures in consultation with workers. However, we would prefer the term successful management of the behaviour used rather than the term control.” (page 2)
VECCI acknowledges that bullying occurs in workplaces but also in the social context, “it is important to foster dignity and respect for others at all times, not just in the workplace.” This perspective is missing from many submissions.
Of the submissions read for this article, that of Michael Costello provides the most food for thought through his discussion of dignity and respect. Many submissions cannot get by the industrial or legal agendas of the organisation writing the submission that just do not get the original focus of the draft code – preventing the potential psychological harm of people at work.
Much of Costello’s submission is attractive but his suggestions are unlikely to appear in the finalized workplace bullying code, or guidance, as the industrial lobbyists have substantially more influence in Australia than any individual. Discussing the application of the concepts of dignity and respect at work has great merit but perhaps this discussion needs to occur under workplace mental health where industrial influence is less and more research is available on the psychological impacts of work activity and inter-personal conflicts.
Perhaps the large number of confidential submissions can balance the industrial influence by reasserting the harm prevention principle of occupational health and safety through painful personal stories. But given the Australian Government’s response to months of public hearings on workplace bullying over the last few years, this is unlikely. The Workplace Relations Minister Bill Shorten may describe workplace bullying as a “scourge” but his Fair Work measures, referenced in several submissions, do little if anything to reduce the scourge.