Australia: Safe Work Australia releases revised draft Model Code of Practice on workplace bullying

Key Points:

Safe Work Australia's revised draft Model Code of Practice on Preventing and Responding to Workplace Bullying gives guidance on compliance with OHS laws and in dealing with bullying complaints made to Fair Work Commission under new legislation.

Safe Work Australia has just released a revised draft Model Code of practice on Preventing and Responding to Workplace Bullying (May 2013 version). The Draft Code replaces the previous draft Model Code of Practice on bullying that was released in late 2011 and withdrawn for further consideration following significant public backlash and critical comment.

The Draft Code is open for public comment until 15 July 2013.

Despite the prevalence of bullying in recent times and the increased attention to it in litigation and the media, the term "workplace bullying" is not yet defined in any legislation.

Given the increasing focus on bullying and potential new jurisdiction for the Fair Work Commission to also deal with bullying complaints, it will be critical for all employers to understand the code and to prepare their organisation for compliance. This will assist in minimising costs and consequences of bullying in your organisation and enable your organisation to appropriately respond to and potentially defend bullying complaints.

What is a Code of Practice and why is it important?

Codes of Practice apply in States and Territories that have implemented harmonised work health and safety legislation (at this stage, harmonised laws apply throughout Australia except in Victoria and Western Australia). They provide practical guidance for people who owe duties under the legislation to achieve standards of health, safety and welfare.

They are also admissible in court proceedings. For example, a court may regard a Code of Practice as evidence of what is known about a hazard, risk or control and may also rely on it when determining whether the duty holder has met the required standard of care.

A Model Code of Practice prepared by Safe Work Australia will apply in a jurisdiction when that jurisdiction has formally adopted that Code.

The new Fair Work Commission jurisdiction to deal with bullying complaints

In addition, the Federal Government has recently tabled a Bill to amend the Fair Work Act to provide employees with an avenue to apply to the Fair Work Commission for orders to stop bullying, where they consider they have been subjected to unlawful workplace bullying. This legislation is currently being debated in Parliament. If that proposed law is enacted, workplace bullying will be unlawful under both work health and safety legislation and employment/industrial relations legislation.

The proposed definition of workplace bullying in the Fair Work Act and the one in the Draft Code are identical. Compliance with the Code and its content are therefore likely to guide handling of complaints of bullying made to the Fair Work Commission, in all States.

How does the Draft Code define "workplace bullying"?

The Draft Code defines workplace bullying as "repeated and unreasonable behaviour directed towards a worker or a group of workers that creates a risk to health and safety". It also defines the terms "repeated behaviour" and "unreasonable behaviour" as follows:

  • "repeated behaviour" refers to "the persistent nature of the behaviour and can involve a range of behaviours over time
  • "unreasonable behaviour" is defined to mean "behaviour that a reasonable person, having regard to the circumstances, would see as unreasonable, including behaviour that is victimising, humiliating, intimidating or threatening".

The Draft Code provides the following non-exhaustive list of examples of unreasonable behaviour that may be intentional or unintentional:

  • abusive, insulting or offensive language or comments;
  • unjustified criticism or complaints;
  • continuously and deliberately excluding someone from workplace activities;
  • withholding information that is vital for effective work performance;
  • setting unreasonable timeframes or constantly changing deadlines;
  • setting tasks that are unreasonably below or beyond a person's skill level;
  • denying access to information, supervision, consultation or resources such that it has a detriment to the worker;
  • spreading misinformation or malicious rumours;
  • changing work arrangements, such as rosters and leave, to deliberately inconvenience a particular worker or workers; and
  • excessive scrutiny at work.

The Draft Code stresses that isolated incidents of unreasonable behaviour, reasonable management action, discrimination and harassment that is prohibited by other existing laws and low levels of workplace conflict are not workplace bullying.

What else does the Draft Code cover?

The Draft Code also provides guidance on:

  • how workplace bullying can occur and the effects it may have on workers;
  • the duties various people hold in relation to workplace bullying; and
  • how the risks associated with workplace bullying may be managed (including prevention measures and investigations into allegations of bullying).

For example, the Draft Code recommends the implementation of policies and procedures in relation to workplace bullying, implementing processes to manage reports of workplace bullying and providing training to workers.

What are the most significant changes in the new version of the Draft Code?

By far the most controversial aspect of the first iteration of the Draft Code related to what the Draft Code defined bullying to include, or not include and references to subtle and unintentional conduct constituting bullying have been watered down.

A significant concern among employers and employer groups was that the Draft Code stated that bullying can be both intentional and unintentional, where unintentional bullying was described as "actions which, although not intended to humiliate, offend, intimidate or distress, cause and should reasonably have been expected to cause that effect". Safe Work Australia has responded to this concern by removing the detailed explanation of what unintentional bullying and simply saying that bullying can be intentional or unintentional.

The list of examples of what might be considered "unreasonable behaviour" has been watered down. For example:

  • "unreasonably overloading a person with work or not providing enough work", being replaced with, "setting tasks that are unreasonably below or beyond a person's skill level;
  • behaviour that frightens, humiliates, belittles or degrades, including criticism that is delivered with yelling or screaming, displaying offensive material and unfair treatment in relation to accessing workplace entitlements such as leave, are no longer specifically included as examples;
  • termination of employment is now listed in the matters listed not to be bullying; and
  • the code identifies that just because there is conflict, it does not mean that there is bullying. The code refers to "Low-level workplace conflict is generally not considered to be workplace bullying. This is because not all conflicts or disagreements have negative health effects". "When conflict is at a low level and is task based, it can benefit an organisation by generating debate leading to new ideas and innovative solutions.

What does this mean for employers?

When it is finalised, the Draft Code will be an important document in defining an employer's obligations regarding bullying.

Employers should:

  • consider whether they wish to make any submission or comment to Safe Work Australia on or before 15 July 2013;
  • prepare for compliance with the Code, including seeking advice on application of the Code and its requirements, implementing or reviewing existing policies, incident reporting and complaint handling mechanisms against the Code and identification of training/education requirements; and
  • develop strategies for responding to and managing bullying complaints, including potential complaints to the Fair Work Commission.

Clayton Utz's Workplace Relations Employment and Safety Team has provided significant advice and training in development of policies, procedures, management of investigations and complaint handling strategies to proactively manage bullying risks and OHS compliance.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.

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