Much has been said and written about the changes to the Fair Work Act 2009 (Cth) that will result in, for the first time in Australia's history, an avenue of immediate redress for workers who have been bullied.
In light of the overwhelming feedback our firm has received and the understandable uncertainty around the actual impact these changes are likely to have on our client organisations, I thought it useful (if not necessary) to set out those steps that I consider your organisation should be taking to protect itself from being one of the early "sacrificial lambs" as the boundaries of these new laws are tested.
My own pedigree in and passion for assisting employers around these matters stretches back to 1997 when, and as many of our firm's clients are aware, I developed and conducted the first iteration of what is now our firm's flagship behaviour and culture training (which is a face-to-face program). That program has been run across all industries and in every Australian state and territory. Amongst the litany of significant cases I have defended or run under anti-discrimination laws, I also authored Managing Workplace Behaviour which was published by CCH Australia in 2012, which is the only strategic text of addressing bullying, harassment and related matters in an Australian legal and commercial context. Only this week, I was privileged to be invited to address the not-for-profit sector at the first Not-for-Profit People Conference in Melbourne on the subject of the new bullying laws.
Given that organisations look to our firm for thought leadership in the behaviour and culture space in Australian workplaces, I have identified the following critical measures against which we would strongly urge you to self-audit as a starting point for measuring your readiness for the bullying reforms. I have divided these measures into those that I consider to be "base-line", "medium-complexity" and "sophisticated" recognising of course that none of these measures are ever truly "easy".
- Ensure that you have in place an appropriately-worded policy that deals with acceptable and unacceptable workplace behaviours
- Ensure that you conduct face-to-face training (through an appropriately-qualified organisation and/or individual) at least once every two years
- If you utilise online training, be aware of its limitations and limit its use to refreshers and quiz-style interaction
- Ensure that you have a framework for the handling of grievances
- Ensure that anyone who has the responsibility of dealing with grievances is aware of their personal responsibilities and obligations
- Ensure that behaviour and culture matters figure regularly on your Leadership Team and Board agendas
- Ensure that you are "measuring" and auditing the extent to which bullying and harassment may be occurring within your organisation but that may be going unreported
- Build capability around genuine performance management and educate all staff around what genuine performance management is about and how it differs from bullying
- Engage with third parties, such as unions, around your initiatives
- Establish an external "whistleblowing" infrastructure that demonstrates your organisation's commitment to these matters
- Understand the problem of "labeling" of certain behaviours as bullying and/or harassment and seek to effect a paradigm shift
- Ensure that your most senior leaders are champions of appropriate workplace behaviour, that they "walk-the-talk" and understand the critical importance of these matters outside of merely lawsuits or adverse publicity
- Incentivate and measure leadership around capacity and capability to address appropriate workplace behaviour matters
- Talk openly within your organisation about where it sits on its journey towards best practice in the behaviour and culture space
It has been estimated that when the new bullying laws commence on 1 January 2014, there will be 3500 complaints in the first 12 months. Regrettably, it is my view that this prediction is likely to be proven wrong and the actual number, particularly given the breadth of definitions in the legislation and the high-profile cases that have been in play in recent years, will be at least double that.
We can assist your organisation, based on our framework above, to strengthen your capacity to defend any claims of bullying. Our unique value proposition as a law firm remains in our ability to provide an end-to-end solution through:
- auditing your infrastructure;
- advising on the areas for improvement;
- implementing those changes in collaboration with you (including around stakeholder engagement);
- presenting to your leadership teams;
- providing one-to-one coaching for your executives around these matters;
- conducting investigations;
- facilitating mediations; and, of course,
- representation in any legal proceedings.
We are committed to working with our clients to assist them through this period of uncertainty and to that end one of our team will be in touch in the upcoming weeks to discuss what a tailored solution might look like for your organisation.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.