In brief - Draft Code of Practice suggests measures to
control bullying and risk
Employers should develop workplace bullying policies, provide
information and training, manage risks in behaviour, have an
effective complaints resolution procedure and encourage reporting
of bullying incidents.
Workplace bullying an expensive problem in
Bullying in the workplace is a significant problem in Australia,
with the Productivity Commission suggesting that workplace bullying
costs Australians between six billion and 36 billion dollars per
As part of the harmonisation of the occupational health and
safety legislation undertaken in Australia early this year, Safe
Work Australia has released a draft Code of Practice, Preventing
and Responding to Workplace Bullying, which is expected to be
implemented in late 2012.
Legal effect of codes of practice
To have legal effect in a state or territory in Australia, a
code of practice must be approved as a code of practice in that
jurisdiction. Codes of practice are practical guides to achieving
the standards of health, safety and welfare required under the Work Health and Safety Act (WHS Act).
A code of practice does not have legislative force, however it
can be used as evidence when determining whether there has been a
breach of the WHS Act and a WHS inspector may refer to a code of
practice when issuing a recommendation or prohibition notice.
The draft Code of Practice defines what constitutes workplace
bullying, identifies the sources of legal obligation and provides
guidance on how to prevent and address bullying in the workplace.
The Code of Practice is intended to provide practical guidance for
duty holders to achieve standards of health, safety and welfare
required in the legislation.
Bullying is behaviour which is victimising, humiliating,
undermining or threatening
The draft Code of Practice provides clarification on the types
of behaviour which constitute bullying in the workplace. Bullying
is defined as repeated unreasonable behaviour directed towards a
worker or group of workers that may create a risk to health or
safety. Behaviour considered unreasonable includes actions that a
reasonable person having regard to the circumstances would see as
victimising, humiliating, undermining or threatening.
In addition, it is noted that bullying can be direct or indirect
an can occur in person, electronically or through telephone or
mobile communication. Examples of direct bullying include abusive,
insulting or offensive language or behaviour or language that
frightens, humiliates, belittles or degrades a person, which may
also include criticism that is delivered by yelling and
Person conducting the business has primary
responsibility for preventing bullying
The Code of Practice further emphasises that every person in the
workplace has a legal obligation to prevent and respond to
workplace bullying. Although the person conducting the business has
the primary responsibility and duty of care with respect to the
prevention of workplace bullying, workers in a place of employment
also have responsibilities:
to take reasonable care of their own health and safety
to take reasonable care to ensure that their own acts or
omissions do not adversely affect the health and safety of
to comply with any reasonable instruction provided by the
person conducting the business
Measures to prevent bullying in the
The Code of Practice provides that the best way to control
bullying and risk is to eliminate the causative factors. However if
that is not reasonably practicable, it is suggested that measures
be implemented to minimise the risk including:
managing risks in behaviour, eg creating a healthy corporate
culture and ensuring constructive leadership style is adopted
developing a workplace bullying policy
developing an effective complaints resolution procedure
providing information and training on workplace bullying to
encouraging reporting of workplace bullying incidents
Implement a workplace bullying policy and train your
It is recommended that your organisation implement a workplace
bullying policy and provide training to all workers.
It is further recommended that the management team is trained in
how to respond to incidents of workplace bullying when they occur
in the workplace.
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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