Australia: Victoria's new workplace bullying laws

I think the best way to answer is a bit of a yes and no, if I can explain it this way, Kate.

Unlike the current laws that deal with workplace bullying, the proposed legislation is not directed at employers, but employees engaged in bullying. However, in another sense, this is an important change which will have flow on implications for employers.

For those who don't know, the Bill effectively treats workplace bullying as a type of stalking, and the flow on from that, in a practical sense, is twofold. Firstly, it will mean that if someone commits an offence of stalking, which will include types of workplace bullying, it can attract jail time of up to 10 years. And while this is a serious penalty, in a real sense it only works as a deterrent if potential bullies are actually aware of it, and obviously employers have a role in terms of disseminating that message.

The second issue is that a victim of stalking can get an intervention order and that might even occur where the stalker has not been convicted of a criminal offence. And in a real sense, intervention orders can include an order that the stalker not approach the victim's workplace or contact the victim, and clearly again that has some practical implications for an employer.

The question then obviously is, "is this going to be an issue for employers?". Even before these proposed amendments have come out, certain types of workplace bullying already fell within the definition of stalking. However, the proposed amendments, in my view, certainly reflect an important change, with more types of workplace bullying being criminalised in the future and, with it, the more heightened public awareness of these particular issues. And we can expect potentially a rise in the number of complaints and victims coming forward. 

That's an interesting question, Kate. As I mentioned, the proposed amendments are not directed squarely at boards but the upshot of all of this is that it will have a practical effect on employers in terms of what they have to do to pay more attention to managing workplace bullying and making sure that it doesn't take place in the workplace.

And you've also got to remember that, in the absence to date of a specific, if I can call it a Workplace Bullying Act 2000 and whatever you want to call it, issues about workplace bullying have largely been dealt with under the Occupational Health and Safety banner through, for example, Occupational Health and Safety prosecutions, and that might come about because there's been a failure to meet an obligation to ensure the health and safety of workers in the workplace.

And in some cases, and thinking of the NSW case, directors have also been prosecuted for their part in failing to act. The other thing that's in the pipeline, so to speak, is that with the pending implementation of national Occupational Health and Safety laws arising from the harmonisation process, there is intended to be a positive duty which will be placed on officers, which will require them to be more proactive in taking steps to ensure compliance by a company in relation to its obligations to Occupational Health and Safety, and that's by exercising due diligence. And an officer will be defined as including a director and also a secretary of the corporation as well.

So that probably gives you a sense that, in terms of the era of regulation in this legal space of Occupational Health and Safety, and underneath that a clear issue is workplace bullying, there is a bit of a general sense that the spotlight will turn through what duties the directors and the board will have in this area. 

Well in simple terms, Kate, employers need to take workplace bullying seriously. That means having appropriate policies that deal with workplace bullying, making sure that those policies are effectively communicated to staff, and what will also be important, particularly for Victorian employers, but it's good practice in any event, is to go back and look at the policies and see whether they sufficiently capture the types of workplace bullying conduct which will be captured by the new proposed amendments.

And lastly, it's very important for employers to actually monitor the workplace for any indications of workplace bullying, because often the issues are, not just addressing the issues after they occur, but making sure that you've got the right system in place to make sure that the conduct never arises. And in a practical sense, things such as records about workplace related injuries, absenteeism, productivity etc., might indicate there is an issue in the part of the business, and employers, if they're on notice about those sort of things, should look into that. 

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