No code of practice for workplace bullying but hope remains
Posted on October 16, 2013
As the 1 January 2014 implementation date for new workplace bullying processes approaches there is an increasing amount of legal, HR, and safety seminars, and newsletters and alerts being produced. Most reiterate the amendments to Australia’s Fair Work Act but occasionally there is additional information.
In a recent seminar, it was suggested that the draft Code of Practice for the Prevention and Management of Workplace Bullying, developed by Safe Work Australia, is to be released as a guidance note rather than a Code of Practice (see below).
The amendments to the Fair Work Act do not exclude the pursuit of workplace bullying claims through other legal mechanisms. It is possible, some would say likely, for a worker to seek multiple remedies in multiple processes at the same time. For employers this may mean that one allegation of workplace bullying could be in several legal processes and that employer needs to track,or participate in, all of them.
One of the criticisms of workplace bullying remedies in the past has been the possibility of workers shopping round for justice. It seems the Fair Work amendments will do nothing to reduce this and,in fact, provides an additional shopping opportunity.
There has also been concerns over the potential numbers of vexatious claims but the amendments go some way into filtering such claims. The definition of workplace bullying is quite clear and should eliminate many of the vexatious claims. Bullying involves:
- unreasonable behaviour by an individual(s) at work
- repeated actions, and
- a risk to health and safety.
It does not allow for reasonable management action and there must be a risk of the bullying continuing.
A major challenge for the Fair Work Commission, as it is also for the State OHS regulators, is the amount of time and special skill set required to filter, or triage, these claims, particularly if the expected flood of claims eventuates.
One of the standard recommendations of industrial relations and OHS professionals is to address a concern or issue within a workplace and through existing grievance procedures prior to seeking external help. The Fair Work amendments do not make this recommendation and this has led to criticism that these amendments could cause an employer to be blindsided by a workplace bullying claim on a matter of which the employer was unaware.
As mentioned in previous blog articles, OHS often gets mixed up with industrial relations. Pursuing a workplace bullying claim through the Fair Work Commission may increase the potential for this overlap to occur. It certainly does little to simplify the pursuit of remedy.
Code or Guidance?
In response to a request by SafetyAtWorkBlog, a spokesperson for Safe Work Australia has provided what seems like a clear indication that Australia will end up with a guidance note on workplace bullying and not the expected code of practice. The reason for this change will be clearer by the end of October 2013 but it may be that the, supposedly, increased flexibility lobbied for by groups such as the Australian Mines and Metals Association has been accepted by the government. Let’s hope it is not the flexibility to ignore the problem.
Safe Work Australia advised the following:
“On 27 September 2013 members of the Strategic Issues Group for Work Health and Safety (SIG-WHS) considered the revised draft Code of Practice: Preventing and Responding to Workplace Bullying. On 31 May 2013 Safe Work Australia Members had agreed to release the revised draft Code for public comment – including asking whether it should be developed as a code of practice or a guide. SIG members took into account submissions received during public comment and decided by majority that the document should be finalised in the form of a guide instead of a code of practice. [emphasis added]
The revised draft Guide for Preventing and Responding to Workplace Bullying will be considered by SIG-WHS members at their 25 October 2013 meeting together with a draft guide for workers Workplace Bullying – A Worker’s Guide. If approved by SIG-WHS the guides will be sent to the next Safe Work Australia Members meeting for endorsement.”
Clearly the workplace bullying guide is not a “done deal” but one can expect it to proceed as a guide.
Does it really matter if the information is a code or a guide? The trade union movement fought for a code of practice on workplace bullying in Victoria over a decade ago but apparently capitulated to the pressure from the business lobby on the understanding that Victoria could have a guidance or nothing.
Codes and guidance notes have different legal standings on OHS law however this differentiation is only relevant if one seeks to avoid the general obligations of the OHS laws which are to provide a safe and healthy working environment and one without risks to health. What both options do is to add to the state of knowledge of a workplace hazard and its management and, as such, this information must be considered when determining hazard control or harm prevention strategies.
The strength of a guidance will come principally from the advocacy of its relevance and application by safety and HR professionals, trade unions, enlightened employers and labour lawyers. A code of practice is able to rest on the authority of its existence, to some degree.
Around a year ago, WorkSafe Victoria released the most recent version of its workplace bullying guidance. The hoo-hah over the Fair Work amendments has greatly overshadowed the application of the Victorian guidance and it is unclear of how the Victorian guidance will sit with the Fair Work Commission’s workplace bullying strategy or how compatible Victoria’s definition of workplace bullying will fit with the Fair Work amendments or the impending national guidance note.
Once Safe Work Australia releases its guidance note on workplace bullying, the Australian media will report on the issues raised and the opportunities presented. What needs to be considered whenever new guidance or codes are released is how the application of these documents can prevent and reduce the harm to workers. Many of us place too much reliance on the documents to change the world but paper can only present ideas not apply them. It is people who apply ideas and it will be people who can take the impending workplace bullying guidance note and make the workplace better and more humane. By preventing bullying, by removing the potential for harm, one can also avoid all the trauma, costs and pain. This needs to be remembered by the bullies and the businesses who do too little to eliminate the hazard.