Disproving the seven myths about workplace
workplace and employment lawyer,
Josh Bornstein of Maurice Blackburn Lawyers, has launched a
provocative attack today on the state of Australia's legal and
policy approach to workplace bullying, describing it as a failure
for employees and employers alike.
Speaking at today's LegalWise forum in Melbourne, Mr
Bornstein addressed some of the myths and misconceptions
surrounding workplace bullying, and took aim at symbolic
legislation such as Brodie's Law, saying those affected need
better, earlier protection.
"Brodie's law is not a bullying law but a stalking law.
So as strong a symbol as this legislation is, in reality, it's
useless in about 95 per cent of workplace bullying cases," Mr
Mr Bornstein also rejected the use of criminal law to address
"It is not a workable model and workplace bullying should
be addressed by national workplace legislation and give victims
access to a user friendly, proactive system which emphasises early
intervention," he said.
The seven workplace bullying myths:
1. Workplace Bullying is illegal.
Many employees assume that bullying is unlawful and actionable.
The assumption is wrong. Contrary to popular belief and despite the
apparent scale of the phenomenon, there is no statutory scheme in
Australia that proscribes bullying. The lack of a law that
explicitly deals with workplace bullying is quite anomalous.
2. Workplace Bullying is a misguided reference to a
Mental health damage is often invisible to the eye. Bullying
behaviours are often subtle.
While it has become fashionable by some to claim that bullying
allegations are unfounded and simply the result of a personality
conflict or relationship breakdown, this is a myth generated
principally by jaded OH&S regulators and bottom-feeding
consultants seeking to drum up work.
3: There is no definition of Workplace
Most OH&S regulators use working definitions of bullying
that are remarkably similar. The Draft Code of Practice released on
Preventing and Responding to Workplace Bullying, Safe Work
Australia defined the term to mean 'repeated, unreasonable
behaviour directed towards a worker or a group of workers that
creates a risk to health and safety'.
4. Workplace Bullying is a safety issue
One of the keys to sensible legislative and policy reform on
workplace bullying is to remove it from its current legal and
cultural designation as an occupational health and safety issue.
Confining it to the realms of OH&S hasn't worked and
For too long we have accepted a second-rate system.
Law reform must allow victims of workplace bullying to take a
complaint to a tribunal or court well before the situation has
escalated to the point of damage to an employee's health. Early
intervention is often critical. Amending the Fair Work Act to allow
this to occur would be a step in the right direction.
5. Employers should address Workplace Bullying by codes
of conduct and policies
The era of the workplace policy or code of conduct being the key
to managing workplace culture is well and truly over.
It is one thing for employers to purchase a vanilla workplace
policy off the internet. It's altogether another to actually
manage workplace culture. The gulf between culture and policy can
and is often significant. Bridging that gulf requires sustained
hard work and strong management.
6. Workplace Bullying should be
In recent response to the Federal Government Review into
Workplace Bullying, the ACTU has suggested that it would support
the criminalisation of workplace bullying. Others have called for
Brodie's law to become a national law.
I couldn't disagree more. Criminal law should only intrude
into the workplace in extreme situations. Most bullying cases are
not criminal matters.
The criminalisation of workplace bullying is a misguided and
ineffective way to address workplace bullying and provide victims
7. The way forward
The fact that something is difficult is no reason not to address
it properly. This issue can be addressed, and in order to reduce
the incidence of workplace bullying, a new policy and legislative
approach is overdue.
The political climate is ripe for a push for significant law
reform in this area. It is evident that the current legal system
does little to afford victims of workplace bullying with effective
options to address the situation.
An investment in an educational campaign about workplace
bullying, together with legal reform, would reap a huge dividend by
saving millions in lost productivity, healthcare costs and social
welfare payments. It would enhance managerial skills and improve
the quality of our work environment.
Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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