The Australian media has given workplace bullying the front page, probably because it is a slow news period and there have been no major disasters this Christmas period. However the coverage is of the new rules and opportunities for assistance offered by changes to the Fair Work Act that commence on 1 January 2014, rather than about prevention.
Most of the comments from the business groups in the article by The Age newspaper will be familiar from the last few months. Generally they object to what they see as red tape and increased regulation. Some also believe that workplace bullying should be handled through human resources rather than as an occupational health and safety (OHS) matter.
Red tape and unnecessary bureaucracy is a legitimate concern but one that, in large part, the business sector has allowed to happen. As discussed previously, much of the red tape originates from the risk management strategy of business where, when an issue or hazard cannot be eliminated or it is too difficult to try, insurance or liability protection is obtained. As others have said, too often the risk management of safety is corrupted to become risk management of legal issues.
To a large extent, the hesitation by the business sector to tackle the root and structural causes of workplace hazards themselves has led to the need for others to take on this role. When government is involved, the major method of managing change is through regulation. To avoid regulation, business should work on reducing the need for regulation and, in the context of workplace bullying, this would mean preventing the hazard and not whingeing about the resources wasted to deal with the hazard once it has occurred.
This issue of unnecessary regulation appeared in 2013 in the development of a draft code of practice on workplace bullying which was eventually downgraded to a guidance. Business groups lobbied hard against a code of practice which has a stronger legal presence than a guidance. The business groups won the argument and the federal government agreed to the downgrade whilst arguing that the status of the document was functionally the same. Legally, perhaps, but a code of practice is seen as a compliance document and has more influence in workplaces.
The same arguments occurred over ten years ago when Victoria introduced its guidance note on workplace bullying. The unions were holding out for a compliance code but realised that, in the face of strong business group opposition, the best they could achieve was a guidance, otherwise there would be nothing to help companies and workers identify and prevent workplace bullying. Pragmatism won then as it did in 2013.
On the issue of Human Resources (HR), there are good HR responses to workplace bullying available but only when the OHS context of workplace bullying is understood and incorporated into the HR response. Sadly, this is a rare occurrence, and HR is often structured to respond to issues rather than prevent them, thus placing HR in conflict with OHS. Legal obligations under OHS/WHS laws in Australia require companies to be active in preventing harm but without a strong voice in the industrial sector this obligation is often lost. Trade unions advocate for prevention but struggle to separate the OHS from the industrial relations. OHS regulators try their best but struggle with balancing prevention with compensation and almost always have an underresourced inspectorate. The OHS profession in Australia, an opportunity for an independent and authoritative voice, is missing in action.
The Age is correct in saying that claims of workplace bullying are “set to soar”. This has been predicted for some time, even privately by members of the Fair Work Commission, but the number of claims does not always indicate the level of a problem. The Productivity Commission could only estimate the costs of workplace bullying Many victims of workplace bullying make no claims but simply leave their job and hope for a better one with a company that has a better workplace culture. This does not help counter the organisational problem, the bullying is likely to continue on their absence, but one cannot blame the worker for looking after their own mental welfare. In fact they have a legal obligation to do so. The tragedy is that their only option seemed to be to leave a job or career they loved.
Many labour law firms are rubbing their hands together in preparation for a “good year”. Workplace bullying is now in their comfort zone, the Fair Work Commission (FWC). They see less need to advise on the prevention of OHS hazards, the development of suitable policies or corporate OHS due diligence. By being heard in the FWC, both the OHS and HR disciplines lose as the lawyers become the principal business advisers on workplace bullying.
The Australian media will be watching the workplace bullying changes closely as the Summer holiday period continues, barring natural disasters or England winning a Test Match. Many labour law firms have already resourced-up for their bumper year. But the workplace bullies will continue and their victims will continue to be told to “suck it up”, or receive resilience training, until they breakdown or leave the job.
The scourge of workplace bullying in Australian workplaces deserves attention but not necessarily the attention it is currently receiving. The OHS profession, regulators and corporate safety leaders must step up and make their voices heard on the cultural changes required to prevent bullying, in the first instance, rather than allowing the seeking of recompense for injury after the event to dominate the agenda and perpetuate the harm.