The term "bullying" is a bit like those other chameleons: "natural justice" and "privacy". Its meaning changes form depending on who is using it, and often bears little relationship to the applicable law.
Now there is a report that attempts to bring together the law and reality of workplace bullying. Workplace Bullying: We Just Want It To Stop, was tabled in Federal Parliament on 26 November 2012 by the House of Representatives Standing Committee on Education and Employment (the Committee).
The significance of the report is demonstrated by the fact that Safe Work Australia delayed finalising its "Code of Practice on Preventing and Responding to Workplace Bullying" until the report could be considered.
The report runs to 256 pages (including a dissenting report by the Coalition members of the Committee) and traverses a broad range of issues relating to workplace bullying.
Significantly, the majority of the Committee recommended that there be further regulation in this area.
The issue of workplace bullying
In its State of the Service Employee Survey 2010-11, the Australian Public Service Commission (APSC) found that 18% of employees reported having been subjected to harassment or bullying in their workplace during the last 12 months.
The Committee highlighted the Productivity Commission's estimate that workplace bullying costs the Australian economy between $6 billion and $36 billion annually. This reflects the difficulty in assessing the costs arising from consequent absenteeism, workers' compensation claims, reduced productivity, diversion of resources to investigate claims, legal costs, staff turnover and lower morale in the workplace.
The Committee recognised that one person's idea of bullying behaviour can be viewed as reasonable management action by another. The Committee also noted that bullying conduct is not limited to that by a manager toward a subordinate—upwards bullying by individuals or groups of employees toward a manager is just as insidious, but rarely discussed or reported.
The Committee noted the importance of having a standard definition of bullying and recommended that the Commonwealth Government promote national adoption of the following definition:
"workplace bullying is repeated, unreasonable behaviour directed towards a worker or group of workers, that creates a risk to health and safety".
The intention is to have an objective basis for assessing the alleged conduct and to capture intentional or unintentional conduct ("directed" is used in a neutral way).
So much law, and yet so little
The report highlights that the concept of "workplace bullying" is not expressly made unlawful in any Australian jurisdiction. Even the widely publicised "Brodie's law" in Victoria does not use the term. It expanded the criminal offence of stalking to include certain conduct that could constitute bullying, such as making threats, using abusive words or acting in any other way that could reasonably be expected to cause physical or mental harm.
In most jurisdictions it is left to workplace health and safety (WHS) legislation to carry the primary mode of redress for conduct that exposes workplace participants to health and safety risks. However, the utility of this avenue is limited by the resources of regulatory bodies, the higher standard of proof in criminal jurisdictions and the fact that such legislation imposes criminal penalties on offenders but no form of compensation for the victim.
Independent of WHS legislation, bullying issues may also be considered indirectly under a range of other legislation, including industrial legislation, workers' compensation, antidiscrimination legislation and criminal law.
The report contains 23 recommendations and many of them relate to instituting services to provide advice, guidance and training to workers and employers on how to deal with bullying issues.
There are also recommendations that the Commonwealth Government trial a mediation service to deal with bullying allegations (where both parties consent) and undertake a feasibility study into the Government providing an independent investigation referral service (to assist employers find appropriate investigators).
More contentious are those recommending that the Commonwealth Government:
- seek to implement model WHS Regulations that effectively make the minimum requirements for managing the risks of workplace bullying currently in the draft "Code of Practice: Managing the Risk of Workplace Bullying" legally binding (Recommendation 5)
- implement arrangements to allow complainants a single right of recourse to an adjudicative process (Recommendation 23)
- encourage all jurisdictions to have criminal laws as extensive as "Brodie's law" and enforce criminal provisions independent of health and safety laws (Recommendation 22), and
- work with state and territory authorities to develop cross-agency protocols to allow for better information sharing and complaints eferrals between safety, industrial relations, anti-discrimination, workers' compensation and criminal jurisdictions (Recommendation 14).
There is also a curious and detailed recommendation directed at the Australian Public Service (APS). The Committee recommends that the Government review how the fit for duty test under the Public Service Regulations 1999 (Cth) is used to respond to bullying and the safeguards in place for its appropriate use (Recommendation 8). The review is to be published and the Australian Public Service Commission is to collect data regarding review applications made to the Merit Protection Commissioner about such referrals.
This recommendation relates to concerns raised that APS managers were referring employees who made complaints of bullying for fitness for duty assessments without adequate reason. The concern relates to inadequate checks on the exercise of the referral power and inadequate avenues of review. The report did not indicate the scope of the perceived problem in this area, nor detail any individual circumstances warranting the concern.
The dissenting members of the Committee were opposed to any further regulatory schemes being established to deal with the issue. They preferred an approach based on promoting the positive benefits to employers of harmonious, caring and cooperative workplaces.
Implications for agencies
Many of the Committee's recommendations either require significant investment or are dependent on cooperation with state and territory jurisdictions in areas where this is historically rare.
The recommendations aimed at legislating to make bullying unlawful and simplifying the options for redress will be the subject of much debate. Ultimately such measures are only worthwhile if backed up by consistent enforcement.
Nevertheless, the report is an important review of the complex issue of workplace bullying. If the less activist recommendations to assist employers and employees are adopted that alone will be a significant outcome.
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