After two years, two drafts and two rounds of public
consultation, Safe Work Australia has determined to release its
draft Code of Practice on Preventing and Responding to Workplace
Bullying in the form of a Guide (Bullying Guide).
While the Bullying Guide will not have the same legal force as a
Code of Practice, it will set a national benchmark for
managing workplace bullying that is likely to have a strong impact
on, not only work health and safety law, but on applications to the
Fair Work Commission under the new anti-bullying laws that apply
from 1 January 2014.
Safe Work Australia will also issue a separate 'Workers
Guide' to workplace bullying (Workers Guide). The Workers Guide
can be expected to have a strong influence on employee expectations
around how organisations should respond to bullying complaints.
Background
Safe Work Australia is an independent statutory agency responsible for improving occupational health and safety arrangements across Australia. It has presided over an occupational health and safety harmonisation process that was agreed by all jurisdictions in principle in 2008 and which has led to the Commonwealth and six of eight states and territories (other than Victoria and Western Australia) legislating close to 'mirror' Work Health Safety Acts from 1 January 2012 onwards.
Who is covered by the new bullying laws
The new anti-bullying laws under the Fair Work Act 2009 (Cth) (FW Act) apply to all Australian workers unless they are bullied at work in a business that is not a 'constitutionally covered businesses'. This excludes sole traders, partnerships, state public service departments and agencies, as well as state government entities and councils (unless they can be characterised as constitutional corporations). The FW Act also restricts coverage of the new laws insofar as they might pertain to matters involving Australia's defence, security or the Australian Federal Police. Volunteer associations with no employees are also excluded.
Excluded organisations could potentially still be drawn into applications under the anti-bullying laws. For example, a contractor (employed by a company and therefore covered by the new laws) working in a state government department (not covered by the new laws) may bring an application under the new laws that includes allegations against members of the Department.
Content of the Bullying Guide
The content of the Bullying Guide, when it is published at the
end of November 2013, is likely to include many features of Safe
Work Australia's draft Code of Practice on Preventing and
Responding to Workplace Bullying (Draft Bullying Code).
The Draft Bullying 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'. This is consistent with the FW Act, under which a
worker is 'bullied at work' if, 'while the worker is at
work in a constitutionally-covered business an individual or a
group of individuals repeatedly behaves unreasonably towards the
worker, or a group of workers of which the worker is a member, and
that behaviour creates a risk to health and safety'.
The Bullying Guide is likely to provide a useful accompaniment to
the FW Act by providing examples of behaviours that could
potentially be considered workplace bullying. In the Draft Bullying
Code examples included not only overt behaviours, but behaviours
that are more subtle and likely to be more difficult to prove, such
as unjustified criticism or complaints, withholding information
vital for effective work performance, setting unreasonable
deadlines or constantly changing deadlines, setting tasks that are
unreasonably below or beyond a person's skill level and
excessive scrutiny at work.
Content of the Workers Guide
The draft Workers Guide includes a section titled 'What To Expect From Your Organisation' that encourages workers to expect that their employer will:
- Respond to a bullying report quickly and reasonably
- Maintain confidentiality
- Remain neutral and impartial to everyone involved
- Provide ongoing support for the employee even if the matter is resolved
- If the matter is investigated, appoint a suitably qualified, neutral internal investigator or a suitably qualified external investigator.
Legal and other effects of the Bullying Guide and Workers Guide
Once the Bullying Guide and the Workers Guide are finalised it
will be up to the relevant state and territory regulators to adopt
the Guides in their jurisdiction.
Because the Guide is not a Code of Practice it does not have the
status that is conferred under section 275 of the harmonised work
health and safety legislation, which makes a Code of Practice
admissible in prosecution proceedings under the
legislation.
However, the Guide could still be used in legal proceedings. For
example, a WorkSafe Victoria Guidance note on Prevention of
Bullying and Violence at Work dated February 2003 was cited in a
recent civil case on psychological injury: Brown v Maurice
Blackburn Cashman [2013] VSCA 122 (22 May 2013). The worker in
that case submitted that the court should apply the definition of
bullying in that guide. Osborn J of the Supreme Court of Victoria,
Court of Appeal, with whom Harper JA and Macaulay AJA agreed,
observed:
As [the Judge in the proceedings at first instance] noted this
definition of workplace bullying does not have legislative force
but he accepted that it was a reasonable working definition of
workplace bullying against which to objectively analyse the
allegations made with respect to [the accused's]
behaviour.
Further, as the judgment makes clear, during the course of the
trial, the managing partner of the law firm that employed the
applicant was cross-examined by reference to the guidance note
.
The Bullying Guide should be seized upon by in-house employment
lawyers and human resources managers as it carries the imprimatur
of work health and safety law and will create a national standard
for best practice management in relation to workplace bullying in
Australia. It will also assist organisations to prepare to
defend applications under the new anti-bullying laws from 1
January 2014.
Modifying behaviours to prevent bullying complaints
We consider the Bullying Guide, the Workers Guide and the new
bullying provisions in the FW Act will be a catalyst for modifying
behaviours in the workplace.
- For example, to avoid bullying claims:
- By employees who say they have been subject to unjustified criticism or complaints, managers should think carefully before criticising or complaining about an employee and consider doing so in a structured meeting with the employee rather than making ill thought out remarks in front of the employee and others.
- Based on employees' being set tasks unreasonably below or beyond their skill level, employees should be provided with job descriptions when employed, and written performance reviews on an annual basis, that confirm the expected skill level and typical tasks (including mundane tasks like photocopying, or, at the other end of the spectrum, difficult tasks) required of the role.
- Based on over-scrutiny, managers who are scrutinising employees in relation to legitimate concerns about issues such as late arrival at work or lack of attention to detail should consider elevating these issues to formal performance management with an agreed monitoring process so that the employee is aware of the process.
In our view, these trends are likely to lead to a shift in the
thinking of many organisations about the importance of actively
managing employees.
© DLA Piper
This publication is intended as a general overview and discussion of the subjects dealt with. It is not intended to be, and should not used as, a substitute for taking legal advice in any specific situation. DLA Piper Australia will accept no responsibility for any actions taken or not taken on the basis of this publication.
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