Every so often, legal seminars on industrial relations and occupational health and safety identify possible solutions instead of spruiking a lawyer’s latest publication or showing off legal expertise and OHS ignorance. In a lunchtime seminar in July 2013, Melbourne law firm Maddocks provided 30 minutes of clarity on flexible working arrangements and another 30 on workplace bullying, providing a useful and refreshing bridge between human resources, industrial relations and OHS.
Flexible Work Arrangements
The Fair Work Act seems to be constantly changing, and one of the most recent changes is a revision of flexible working arrangements. These arrangements have always been on the fringe of OHS but integral to HR where returning to work from extended leave needs phasing in, or where one’s familial situation has changed so that 9 to 5 is no longer manageable. OHS is not overt in these negotiations
HR and OHS seem to be using similar language for once, but the new OHS, Work Health and Safety (WHS), is well ahead of HR and the flexible working arrangements in the application of the definition of workplace. Safe Work Australia advises that a workplace can be:
“…any place where a worker goes or is likely to be while work is carried out for a business or undertaking.” (page 5)
Yesterday’s presentation and questions from the audience indicated that this concept still has some way to settle. Teleworking fits very well with this concept, but telework actions over the last decade have often focused on establishing a home office for work, taxation and liability purposes. The workplace “bubble” in the WHS legislation can be an uncomfortable challenge to many trying to develop flexible working arrangements that are also safe.
One of the partners and Maddocks, Catherine Dunlop, spoke about the difficulties being presented by one of the failures of the OHS harmonisation process – potentially incompatible definitions of workplace bullying. The Victorian Government has chosen not to participate in the harmonisation of the OHS laws but has continued to develop and issue guidance on managing and preventing workplace bullying. Victoria is well ahead of the other States even after harmonisation because it has led in this area for over a decade. It is clearly at the forefront but by not signing onto the WHS laws in many ways, Victoria’s lead is heading in a direction that others cannot follow.
Dunlop contrasted the Victorian workplace bullying definition to that of the current draft national code. Amongst other differences, Dunlop emphasised the “negative behaviour” text in the 2012 Victorian guide:
“Workplace bullying is characterised by persistent and repeated negative behaviour directed at an employee that creates a risk to health and safety.” (page 2)
The national draft code stipulates “unreasonable behaviour”, as did earlier Victorian publications. It is common for lawyers to debate definitional interpretations, but how does this variation affect how workplace bullying should be prevented? It may have been possible to determine what is unreasonable, but how is negative behaviour identified and prevented?
A most valuable lesson from the seminar was that personal interaction that may cause distress (negative behaviour) may not be workplace bullying unless that interaction”creates a risk to health and safety” (stipulated in both OHS and WHS jurisdictions). This is an important refocusing from the action itself to the possible health and safety consequences of that action. Many may find this a useful point to emphasise in any training or policy development on workplace bullying. By checking off what workplace bullying can be, one can determine what workplace bullying is not.
OHS professionals love the hierarchy of controls, and these can apply to workplace bullying but can be clunky. The Maddocks presentation included a graphic from the State Services Authority‘s workplace bullying guidance (page 5 and based on unreferenced work by “McKeown, 2007”)
The attraction of this pyramid is that it shows early intervention as the most effective way of obtaining good outcomes. This can also be the most cost-effective method. Also, the graphic refers not to workplace bullying but to negative behaviours.
The seminar rounded off by placing the workplace bullying issue under the concept of workplace mental health. In this way, a discussion that began with the Fair Work Act and flexible work arrangements led to work/life balance to OHS to workplace bullying to a holistic approach to mental health. Quite an intellectual journey on ham and cheese sandwiches and a glass of orange juice.