Greens To Introduce Workplace Bullying Laws

Victoria’s Workplace Bullying Laws were introduced as part of a pledge to tackle serious workplace and other forms of bullying.  Queensland has recently adopted anti-bullying legislation whilst South Australia is close to adopting similar legislation.

At a recent Ministerial Standing Committee on Law and Justice, Government Ministers flagged the importance of finding effective means of dealing with all forms of bullying, whether occurring in the workplace, school yard, sporting club, cyberspace or elsewhere.

Prime Minister Julia Gillard expressed her support for federal workplace bullying laws, whilst earlier in December ACT greens are seeking approval of legislation to combat workplace bullying and harassment.

The Greens’ draft legislation proposes the establishment of a specialised inspectorate equipped with the requisite expertise in dealing with bullying and other workplace psychosocial issues, in addition to creating an expert advisory committee on bullying to make sure the ACT implements best practice laws and procedures.

Statistics from Safe Work Australia reveal that bullying and harassment constitute nearly 40% of emotional stress claims accepted within the ACT public sector.  Data from complaints lodged with WorkCover NSW in 2010-2011 revealed that over 60% assessed were either rejected or withdrawn. Only a few complaints lodged with WorkCover NSW were evaluated as serious enough to warrant prosecution.

There appears to be a discrepancy between figures related to bullying incidents being reported to various bodies, with bodies like WorkCover NSW and the Australian Human Rights Commission reporting anywhere between 50% and 400% increases in bullying complaints received, compared to the Productivity Commission which has reported a decline in such complaints. This discrepancy is possibly due to the fact that the Productivity Commission’s reported figures relate only to successful compensation claims. The increasing prevalence of workplace bullying incidents being lodged could also be referable to an increasing awareness of workplace bullying.

The Greens are seeking support of other political parties to support tough new workplace bullying laws including criminal sanctions for serious bullying.  There is a growing recognition that workplace bullying is toxic to any working environment, resulting in high levels of staff turnover, absenteeism, poor morale and declines in productivity.  Where workplace bullying remains unaddressed, it expose workplaces to financial penalties in the form of workers’ compensation claims, coupled with possible fines for breaches of workplace health and safety legislative obligations.

Worksafe Commissioner Mark McCabe acknowledged that investigating allegations was difficult because victims or witnesses were often afraid of speaking out.

Workers found to have recklessly failed to prevent behaviour that causes serious harm to another can be fined $220,000 and jailed for seven years under ACT law.

A proposed code of conduct by Safe Work Australia titled Preventing and Responding to Workplace Bullying has come under criticism by workplace bullying experts.  The final draft of the code is predicted to influence the shape of future workplace laws in NSW which, at present has no specific anti-bullying legislation.

Some researchers and experts on workplace bullying have identified problems in the coverage of the bullying code, with one of the flaws being the omission to discriminate between overt and covert bullying behaviour.

Employers confronted by tough anti-bullying laws are concerned about being potentially unfairly exposed to the prospect of serious litigation and/or fines for their failure to act on one single informal verbal complaint. However by definition, bullying consists of an ongoing pattern of repeated behaviour, precluding the possibility of a worker levelling accusations over trauma allegedly induced by a single incident.

There was also a recognition that there was a  risk that over-sensitive  individuals will invariably be more pre-disposed to a perception that their co-workers or bosses were engaged in bullying behaviour towards them, when this may not be the reality.

There are concerns that ordinary reviews and monitoring of  employee work which may involve giving negative feedback, and/or instigating a work performance management process for a complainant employee may be wrongly construed as bullying.

However, the reality is that if you look at many bullying related cases in various areas involving discrimination and workers compensation cases, an Employee who speaks out about a workplace safety issue or harassment invariably comes under unprecedented scrutiny for their workplace performance.

Often there is an attempt to portray an employee as a troublemaker, and the model employee, whose work performance has never been the subject of complaint being targeted for ‘performance issues’ after making complaints.

There should be an appreciation that interpersonal conflict and  differences of opinion or workplace conflicts will not necessarily lead reflexively to the labelling of employers or workers as ‘bullies’, although often bullying behaviour may have their origin in such conflicts.

Concerns were also articulated about the appropriateness and efficacy of mediation as a tool for resolving workplace bullying, given that mediation is predicated on there being an equality of bargaining power, which may be little more than a fiction in a workplace environment, especially where an incident of bullying has already been alleged.

There appears to be a consensus that formal mechanisms and swift procedures to address  work­place bullying grievances are required to ensure complaints are treated seriously.  All persons involved in responding to workplace bullying complaints should ideally be neutral in their approach, providing support whilst ensuring due process and fairness to preserve the integrity of the process for all parties.

People who have had to deal with HR department­s and managers when attempting to address workplace bullying have expressed a different reality; Clayton UTZ settle sexual harassment claimWhilst documentation and communication protocols with parties is critical, an employer should aspire to confi­dentiality where the accuser requests this. 

As seen in Complainant AU v Public Sector Agency [2011] VicPrivCmr 03, a privacy complaint brought by the victim of alleged bullying within a public sector agency, where a complaint is made against a co-worker or co-workers, ensuring the victim’s confidentiality is observed can be a delicate balancing act.

Any information contained in documentation relating to a victim’s complaint should be secured from unauthorised access and disclosure, whilst also balancing the rights of employees at risk of being vilified due to false bullying accusations.

There is a growing chorus of disapproval from psychological associations condemning the passing of tough anti-bullying legislation as a solution to bullying, with Janice Harper objecting to the anti-bullying hysteria, rhetoric, and alarming rise in policies and laws to address the phenomena in a thought provoking article ‘The Bully Label Has To Go’.  There is a concern about the use of the word ‘bully’ as a label to stereotype, stigmatize and marginalise individuals.

Related posts:

  1. Workplace Bullying Laws & Privacy
  2. Victoria’s Workplace Bullying Laws
  3. Gillard Supports Federal Workplace Bullying Laws
  4. Clayton UTZ Settle Sexual Harassment Claim
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