Workplace bullying: why no code of practice but a guide only?

i-survived-bullying

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’.

Collins also said that while Safe Work Australia has opted to release the resource as a Guide, it will review this decision in twelve months — this will involve looking closely at the Fair Work Commission’s new anti-bullying jurisdiction (including the case decisions that might come out of it) as well as other developments in this area.
‘Down the track, people might feel comfortable about it being Code of Practice,’ she stated.

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.

‘In effect, there is not much difference between a Code of Practice and a Guide,’ she stated.

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.

Group 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 FWC stresses that “reasonable management action” does not count as bullying.

“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:

 

 

Also see:

 



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7 Responses to “Workplace bullying: why no code of practice but a guide only?”

  1. The reason guidelines are being released instead of a legally enforceable Code of Practice is because it can be easily dismantled. In light of yesterday’s decision to appoint an extreme right wing Libertarian to the position of Human Rights Commissioner which now means we don’t even have that as an option to appeal to now as injured workers, it is no surprise to me that the prospect of any means of addressing workplace bullying has now really disappeared. Unfortunately we are heading into an era of even more abuse of our rights. I wonder how many people sleep easily at night knowing that things are only going to get worse, I know employers, politicians and insurance companies do, the rest of us, who knows.

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    • Totally agree with you bunny,now if i employed bunny or any one else that posts here to develop a policy on bullying there would be no bs and it would be put together in reckon 3 months tops and as far as sleeping easy mmm we have got a lot to worry about we pay these fools to develop jack shit

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      • Thanks Johnny, looks like one of the only avenues we have left are international ones. I hope everyone realises that what most of us have been subjected to by various workers comp legislations in this country are in total violation of international law. And ALL of our state and federal governments are signatories to every international law. So all of us should join together and take our concerns to the UN, forget the Human Rights Commission, they have gutted it.

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  2. Human Rights Victoria refused to investigate bullying by my employer and workcover, the denial of fair process & the denial of any genuine recourse for natural justice. They stated it was beyond their mandate, Their scope has been reduced to discrimination only, so I must prove that i am treated differently to any other injured worker…which I have no way of doing without access to all WC cases & obviously I am treated the same as any other seriously injured worker…appalingly.

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  3. Considering how insidious and (in many cases) subtle workplace bullying can be, I wonder exactly how a targeted employee (victim) can adequately prove that they are being bullied. Add to that the general cone of silence imposed by managers when it comes to dealing with bullying behaviour and it really becomes an unworkable system.

    Often, managers have no idea how to deal with workplace bullying, assuming it will go away if ignored, fearing to take any action lest they be accused of bullying themselves, or worst of all if they are party to the bullying and don’t want to be caught out. My own experiences with the APS and (on behalf of others) other workplaces has shown me that many internal processes for dealing with cases of bullying tend to involve the same old “escalate to your manager” direction, which is fine except when the manager is the bully, or the manager and the bully are best friends. Unfortunately the process breaks down at this point as there is no alternative process and HR is unwilling to deviate from a process if it exists.

    A couple of other points caught my eye too:

    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.

    I would love to know how having a procedure (which is specific as to required actions to be taken) somehow goes against confidentiality. Surely a procedure can be clearly defined but maintain confidentiality?

    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.

    Isn’t this an example of having a procedure that still maintains confidentiality? If it’s good enough for FWA, why not the code of practice?

    The other points that got my attention were:

    “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”.

    The repeated nature of victimisation and bullying can often be difficult to demonstrate. What if a bully uses a variety of different ways of victimising their target? Exclusion one day, micromanaging the next, unreasonable workload demands next week and public humiliation the week after? Each action when viewed in isolation would not appear to fit the criteria above. In many cases the bully could and would claim they were taking “reasonable management action in a reasonable manner”. Building a case to prove that bullying has taken place is a long and arduous process which puts the poor victim under even more stress.

    Perhaps if this one day does become a code of practice, it will create suitable ways for bullied workers to have their side of the story heard in an impartial and fair way (I think I may be dreaming!) and assist with a less stressful and fairer outcome.

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  4. Wow Silver you just described my manager to a tee! This is exactly how I was treated and when I went to the HR department for help they were too scared of my manger to do anything so I end up getting sick from it.

    They need to do something that will protect the victim, I just don’t know what it is…

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  5. In just a few days a number of changes to the Fair Work Act come into force, including a significant anti-bullying amendment.

    From January 1 workers who believe they have been bullied can apply to the Fair Work Commission for an order to have it stopped.

    The amendments to the Fair Work Act were passed by the Federal Parliament in June and include changes to superannuation and paid parental leave.

    However, it is the new anti-bullying measures that have caused a stir.

    Josh Bornstein, the head of employment law at Maurice Blackburn lawyers explains the new rules.

    “For the first time there will be a law that will allow victims of workplace bullying to seek orders from the Fair Work Commission with the ultimate aim of ensuring that the workplace bullying is brought to an end,” he said.

    However, the Fair Work Commission will not have the power to award compensation.

    “The Commission is given a pretty broad power to make orders either directed to a particular individual or directed to the employer, or both, but with the ultimate aim of ensuring that the workplace bullying is brought to an end,” Mr Bornstein added.

    Business groups say the changes are problematic.

    “The workplace bullying jurisdiction does give rise to a lot of complications from a business point of view,” said the CEO of the Australian Chamber of Commerce and Industry, Peter Anderson.

    “Low level bullying acts are very much human resource and personnel issues, and taking these matters into the industrial relations tribunal you give these complaints a completely different characteristic.

    “You also end up with the very serious matters being mixed in with the very low level issues and that doesn’t do justice to the serious matters.”

    Steve Smith, the director of workplace relations at the Australian Industry Group, shares those concerns.

    “This is a very important issue, and an issue that does need more resources, but those resources in our view would have been better devoted to the occupational health and safety jurisdictions where bullying has always been dealt with,” he argued.

    Mr Smith also points out that the Fair Work Commission will only have 14 days to deal with a complaint.

    “There’s a very tight timeframe for the commission to begin dealing with the complaints once one is lodged. The timeframes all along are quite tight,” he added.

    “No-one has any idea at the moment of how many complaints are going to be lodged after the 1st of January. Given that both sides of politics are supporting these laws, it looks like they are here to stay.”

    However, Josh Bornstein from Maurice Blackburn lawyers says it will be good to see the commission dealing with bullying complaints quickly.

    “One of the difficulties we’ve had in the area of workplace bullying for many years is that occupational health and safety authorities like WorkSafe have been very slow to react to workplace bullying and in my view quite ineffective,” he responded.

    “This new law is directed at a proactive approach to preserve health and employment and as a result requires the Fair Work Commission to at least commence the process of taking steps to address any claims that are made.”

    The new laws come into effect on January 1.

    http://www.abc.net.au/news/2013-12-27/business-concerns-over-new-bullying-laws-set-to-take-effect/5176026

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    workcovervictim3 December 27, 2013 at 8:52 am