As reported by The Australian, the Australian Council of Trade Unions (ACTU) and the Australian Manufacturing Workers Union is supporting tough workplace bullying laws implemented at the federal level, whilst also pushing for features of Safe Work Australia’s anti-bullying draft Codes of Practice to be strengthened to protect workers from workplace bullying. (see Preventing And Responding To Workplace Bullying)
The ACTU contend that workplace bullying should be addressed within the same framework as any other workplace hazard. The union argues that the examples of bullying outlined in the ‘Model Code Of Practice on Bullying’ should be extended to cover a broader range of behaviours (eg the spreading of rumours or innuendo), and wants the Code to explicitly state that a single instance of unreasonable behaviour can pose a risk to occupational health and safety in the workplace.
The legal regime for addressing bullying was fragmented. Queensland and the ACT had codes of practice on workplace harassment (one form of bullying), while states such as South Australia have dealt squarely with bullying within their Occupational Health and safety laws. Victorian workplace bullying laws were introduced via an expansion to criminal laws to deal with ‘serious bullying’. The Prime Minister Julia Gillard supports Federal laws which introduce jail terms for serious bullying and cyberbullying. (see also Greens To Introduce Workplace Bullying Laws)
The ACTU is advocating for a declaration to be inserted into the new national code on bullying, similar to that adopted by NSW and Victorian workers compensation guides, which recognise that a single incident of unreasonable behaviour could pose a risk to health and safety. This would represent a departure from the concept that only repeated instances of abuse amount to bullying.
Safe Work Australia’s draft Model Code of Practice On Bullying is the subject of contention between unions and Employer groups. Unions have characterised the Code as inadequate in conferring sufficient protection upon workers against bullying, whilst Employer groups argue that the changes will precipitate a steep rise in claims and prove unnecessarily costly and resource intensive. Employer groups are also critical of organisational culture and managerial styles of leadership being included as possible contributors to bullying.
Safe Work Australia has prepared and registered several other Work Health and Safety Codes of Practice (CoP), some of which have already commenced operation. The Codes developed by Safe Work Australia, (which appear on the website) are part of the national harmonisation of occupational health and safety laws.
The CoP apply to all bodies and persons conducting a business or undertaking (PCBU) under both the Work Place Health and Safety Act and the Work Place Health and Safety Regulations 2011.
The Codes are admissible as evidence in proceedings brought under the Act and Regulations, of what is known about a hazard, risk or control. They afford a guide as to what might be viewed as reasonable practice in terms of the subject matter a given Code relates to.
The Codes are also intended to afford practical guidance in attaining the standards of health, safety and welfare enshrined in the Act and Regulations. They can potentially also be used by workplace inspectors issuing prohibition or improvement notices.
A person conducting a business or undertaking (PCBU) is defined broadly and isn’t restricted to employers. A PCBU can include principal contractors, self-employed persons, persons having management or control of a workplace, designers, manufacturers, suppliers, importers or installers. An ‘officer’, as defined under the Corporations Act 2001 (Cth), is also under a duty of care to ensure compliance with Code imperatives.
Whilst there is no legislative definition of workplace bullying, the Code defines it in the same way as WorkSafe Victoria’s Guide does, namely as “repeated, unreasonable behaviour directed towards a worker or group of workers that creates a risk to health and safety.”
It differentiates between direct and indirect bullying, recognising bullying can happen face-to-face, over the phone, via email, instant messaging or via mobile phones.
The Code offers examples of behaviours which may constitute direct bullying as follows:
- abusive, insulting or offensive language;
- behaviour or language that frightens, humiliates, belittles or degrades
- harmful or offensive initiation practices.
Examples of indirect bullying contained in the Code include:
- overloading a person with work or not providing not enough work
- setting tasks that are unreasonably below
- deliberately excluding, isolating or marginalising a person from normal work activities
- withholding information that is vital for effective work performance.
As is the case with regard to discrimination law, intention is irrelevant in assessing whether conduct rises to the level of bullying. What matters is the impact or effect of the relevant behaviour, not whether it is intentional or unintentional.
The Code states that conduct can be characterised as bullying where the relevant behaviour “should reasonably have been expected to cause” humiliation, offence, intimidation or distress. However the Code clearly articulates that “reasonable action carried out in a fair way will not constitute bullying“.
One of the most contentious aspects of the Code on Preventing and Responding To Bullying is a section dealing with ‘Systems of Work’, which states that job insecurity and change, due to restructuring, downsizing, outsourcing, or workplace change, may be a source of possible bullying. Employer groups concede that workers compensation claims may rise during phases of restructuring, but maintain that they are typically associated with natural occurrences of stress rather than bullying behaviour.
The Australian Federation of Employers and Industries (AFEI) are also dissatisfied with the subjective element in the definition of bullying, which it claims will lead to the making of value judgements by workplace inspectors and workers compensation officers. They are also disturbed by the fact that the Code definitions recognise bullying can occur merely by virtue of there being a risk to health and safety, without any injury necessarily being sustained.
The Australian Chamber of Commerce and Industry (ACCI) does not want the code to have any evidentiary status in prosecutions or proceedings under legislation.
New legislation to establish uniform national legislation is already in effect, however some States’ Codes of Practice will require revision prior to their release. NSW, Queensland and the territories have implemented the new federal bullying legislation, whilst other jurisdictions are set to do so later this year.
Workplace bullying is an issue of concern for human resource practitioners, employees, Governments, Managers and Unions. Workplace bullying is still largely invisible given that victims are reluctant to report workplace bullying because of the repercussions of retaliation and the difficulty of substantiating that bullying has occurred under current legislation and procedures.