According to the branch manager, WHS & Governance at Safe Work Australia, the main reason behind Safe Work Australia’s decision to scrap its draft WHS Code of Practice on Preventing and Responding to Workplace Bullying and re-convert it as a Guide only, was because of the difficulty of establishing robust control measures for people’s perceptions of bullying to the required level of evidence.
Workplace bullying: why no code of practice but a guide only?
Julia Collins (branch manager, WHS & Governance at Safe Work Australia) told the Workplace Bullying Conference (which was held in Sydney on 11 to 12 December) that while a Code of Practice had been in development since 2011, after two public comment periods and an extensive consultation process involving industry, unions and WHS regulators, Safe Work Australia was unable to secure agreement on a ‘settled document’. Collins said there was ‘50:50 split’ on whether the developed resource should be a Code of Practice or a Guide, reflecting dividing views not only as to what workplace bullying is but, also, how to deal with it effectively.
The bullying debate is ongoing
The debate around how best to address workplace bullying is still ongoing said Ms Collins, and further research is still needed in this field. Safe Work Australia could not sufficiently establish that the control measures in the draft resource should be afforded the evidentiary status provided by a Code of Practice.
A major part of the difficulty for Safe Work Australia was that whereas other Codes of Practice are focused around physical hazards, workplace bullying is ‘very much about people’s perceptions of what they are experiencing in the workplace’.
Guide has Lesser status, still state-of-knowledge
Collins said the Guide doesn’t have the same evidentiary status bestowed on a Code of Practice, which under the WHS laws can be taken as automatic proof that someone has or has not done what is reasonably practicable.
Nevertheless, it is still ‘state-of-knowledge’, and that while it’s not automatically admissible, it could still be tendered as evidence in a court.
Contentious, debatable or disputable issues, including one-off incidents
Collins identified some contentious issues from the consultation and development phase that informed Safe Work Australia’s decision to release the Guide for preventing and responding to workplace bullying. The SafeWork Australia has also released the following documents:
Does workplace bullying belong in the WHS jurisdiction?
There was also some debate around whether workplace bullying should even sit within the WHS jurisdiction or whether it was more at home in the IR (Industrial Relations) sphere. Collins stated that bullying is a WHS issue, and it is captured by the harmonised WHS laws. She explained:
‘There is a requirement for [persons conducting a business or undertaking] to ensure so far as is reasonably practicable that workers and other persons are not exposed to health and safety risks arising from the business or undertaking, and health is defined as both physical and psychological health. Although there aren’t specific regulations for workplace bullying, there is an expectation that anything that will damage psychological health arising from the business or undertaking, needs to be managed in the same way as other workplace safety risks.’
One-off incidents versus repeated bullying
Some stakeholders were of the view that the definition of workplace bullying should capture one-off incidents in addition to repeated behaviour, and the general view was that to early intervention is crucial. Relevantly, Collins noted that one-off incidents ‘shouldn’t be ignored as they can escalate into workplace bullying’.
Specific examples of bullying
Including specific examples of bullying behaviour in a Code of Practice also proved to be a difficult task for Safe Work Australia. Collins explained: ‘Some people find it helpful, some people might just pick a particular example and hone in on that as being workplace bullying. It wasn’t the intent of the examples to result in that outcome … they all have to be looked at in light of being repeated, unreasonable and creating a risk to safety. You can’t just take that one example and say that’s what I’m experiencing, therefore it’s workplace bullying.’
Should organisation risk factors be included in the Code of Practice?
There was debate around whether organisational risk factors should be included in a Code of Practice (eg various leadership styles including autocratic behaviour and work stressors such as high job demands). While such examples have been included in the Guide, Collins explained that stakeholders couldn’t agree on whether there was sufficient evidence that these factors actually increase the risk of workplace bullying.
Stakeholders also identified a need for more guidance on group bullying as well as bullying of and by third parties, including how to manage those situations.
Issue resolution procedure not suitable and omitted
A subsection of the draft Code, titled ‘Issue resolution procedure’, was omitted from the new Guide. It had dealt with how an issue resolution procedure that has been agreed to by the PCBU and its workers must be used to resolve any bullying issues reported that cannot be resolved through discussion between the parties. Collins explained that it was decided that an issues resolution procedure was not suitable, for reasons including that it was at odds with the requirement for reports of bullying to be dealt with confidentially. Instead, it was decided to include further guidance on balancing confidentiality and transparency.
The Fair Work Commission has now released its anti-workplace bullying guide
Anyone who “reasonably believes that he or she has been bullied at work” must pay $65 to apply to the FWC for an order to stop bullying.
The FWC cannot award compensation, impose fines or order that a sacked worker be reinstated.
But complainants can still lodge duplicate claims with state and territory tribunals that can order compensation.
“The concept of bullying conduct is defined broadly but must involve repeated unreasonable behaviour while the worker is at work, and create a risk to health and safety,” it states.
“It does not include reasonable management action taken in a reasonable manner”.
Before making a stop-bullying order, the FWC must find there is a risk that the bullying conduct will continue by the same individual or group.
Complainants will need to name the alleged bully, give an example of the bullying behaviour, explain when it started and how often it was repeated, and whether they reported it to management.
They must specify if they want an FWC order to “prevent further bullying”, counselling, an apology, a transfer or a change of roster.
Workers or bosses accused of bullying will then have to fill in a form defending their actions – but will not have to answer questions if they believe answers ”may be self-incriminating”.
The questions include, “Were you aware that the worker felt you were bullying them at work?” and “What do you know about how the worker felt?”
Employers will also have to complete a form, responding to any allegations.
Fair Work Commission launches new Anti-bullying pages
The Fair Work Commission launched a new Anti-bullying section of its website. The section contains information about bullying at work and an overview of the processes to be followed by the Commission when the jurisdiction commences on 1 January 2014.
The section also contains the following downloadable resources:
- Workplace bullying guides in place instead of Code of Practice
- Fair Work new anti bullying rules out for comments