Radical shake-up of workplace bullying

by Stephanie Zillman16 Jul 2012

The peak employer advocacy group has rejected calls to the federal bullying inquiry by Unions NSW regarding the definition of workplace bullying to be expanded to include psychological and mental health damage.

In response to the radical submission from the peak trade union body, the Australian Industry Group (AiGroup) said it disagrees with the notion that workplace bullying should be dealt with through an expansion of anti-discrimination law, which is more adversarial than work health and safety law.

When the federal government announced the parliamentary inquiry in May this year, Prime Minister Julia Gillard and Workplace Relations Minister Bill Shorten said the inquiry would focus on creating a national law and will also develop a code of conduct for the workplace. Gillard said more needed to be done to stop the “silent epidemic” of bullying in the workplace. Minister Shorten cited statistics from the Productivity Commission which estimated workplace bullying is costing Australian businesses between $6bn and $36bn annually.

According to Stephen Smith of Ai Group, there is a lot of misunderstanding of what workplace bullying actually is. "For example, it is not widely understood that workplace bullying is a problem that primarily falls within the jurisdiction of work health and safety regulation, which has a strongly preventative focus, and not anti-discrimination or industrial law, which deals with discriminatory or harassing behaviour in respect of a specific protected attribute,” Smith commented.

He added that the statistics show that many complaints about workplace bullying turn out to not be valid -- for example, if an employer disciplines a poor performing employee in a reasonable way that is not bullying even though the employee may think that it is.

It is the view of AiGroup that bullying complaints remain a serious issue but the high community cost of bullying can best be addressed by a renewed emphasis on prevention. In his statement response, Smith also called on the governments to devote more resources to educate employers, employees and the community on what workplace bullying is and how it should be prevented and dealt with.

Proposals to prevent negative workplace cultures from developing and to help bullying victims return to work will also be considered during the inquiry, which will be undertaken by the House Standing Committee on Education and Employment.

The committee, comprising members from both major parties, will consult extensively with the community and will report back to government by 30 November 2012.


  • by Bernie Althofer 17/07/2012 7:39:29 AM

    Workplace bullying is a complex issue requiring complex solutions. As the various discussions have indicated over the past few years, there is no simple answer. There are complexities that lie in defining bullying.

    In some cases, bullying and harassment are viewed as being the same when there are some considerable differences. However, the lay person might find it acceptable to identify with bullying and harassment as being the same.

    There is little doubt that individuals and workplaces want to see an improved approach to dealing with bullying. There is a combination of management practices, communication practices, and the more litigious type of responses that can be used.

    Allegations involving workplace bullying can involve aspects of recruitment, selection, placement, inductions, performance management and discipline through to workplace toxicity, psychopaths and psychopathic leadership and sociopaths.

    Depending on the circumstances and the circumstances of the allegation, in addition to criminal offences that may have been committed, offences in relation to the following legislation may have been committed:

    • EEO, Human Rights and anti-discrimination laws
    • Racial vilification laws
    • WHS and Worker’s Compensation laws
    • Unfair and constructive dismissal legislation
    • Employment protection and contract law
    • Industrial or workplace relations laws
    • Common law claims for damages, negligence, or duty of care
    • Personal injury law
    • Laws relating to natural justice and procedural fairness
    • Liability (personal and vicarious)
    • Privacy laws
    • Public sector ethics and Codes of Conduct
    • Defamation laws
    • Whistle blowing and public interest disclosure laws

    These laws may have been enacted at a Federal (Commonwealth) level or at a State level.

    The issue seems to be that some individuals and some organisations may not be aware of how these laws can be used, until they engage a legal professional to respond to an allegation. Perhaps there is a greater educative need to ensure that organisations and individuals not only know about these laws, but also how and when they can be used.

    If one reads some of the recent decisions made in various Courts, Commissions and Tribunals, one will see that an ever increasing range of factors are being raised in workplace relations claims, and these in some cases, cover issues such as bullying, performance management, work allocation etc.

    There is of course a concern that additional legislation to deal with workplace bullying will have an impact on reporting. If as some media has reported, some elements of bullying will be a criminal offence, then the rules of evidence will change. In some cases, those who are being targeted may find that the entire criminal justice process only adds to their personal psychological trauma, and become even less inclined to report.

    It might be more beneficial to find out what currently exists in terms of legislation etc and then develop strategies to promote that aspect.

  • by Sebastian Harvey 18/07/2012 1:24:22 PM

    The various definitions of bullying currently include reference to 'unreasonable behaviour that creates a risk to health and safety'. If mental and psychological health are not considered in the 'risk to health and safety' then I wonder what is? Just because people become depressed, anxious or stressed does not in itself mean bullying is occuring. There may be a number of factors contributing to this. It is only if the psychological harm can be related to patterns of unreasonable of behaviour that it can be considered bullying. Workplaces need to define what is reasonable and unreasonable behaviour in their workplaces. This provides for both prevention (through awareness of expectations) and management of issues (through clearer definitions in investigations and resolution).In my training programs I point to the risk of being distracted from your job by repeated unreasonable behaviour of others. People who are not focused on their job have accidents, and are therefore a health and safety risk to themselves and others. It is one of the first questions I would ask someone claiming to be bullied. Even if the behaviour that creating the distraction is reasonable, this risk needs to be managed.

  • by Bernie Althofer 18/07/2012 2:44:26 PM

    I believe that most managers would believe saying to an employee "As a matter of interest, what do you have on next week?" would be reasonable management actions. They would be very surprised to find that a regulatory body may determine this to be unreasonable management.

    As Sebastian has pointed out, there is a need to conduct the investigation to understand what is linked, where and why it is linked, and the relevance or important of each and every aspect identified or reported.

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