The end of 2012 saw the following notable news items:
- A Mildura Magistrate imposed a $50,000 individual fine for workplace bullying [1]
- Comcare issued the CSIRO with an Improvement Notice under the Work Health and Safety Act 2011 (Vic). The improvement notice requires the CSIRO to undertake a range of improvements to its systems in relation to management of workplace misconduct and of allegations of bullying [2];
- The House of Representatives Standing Committee on Education and Employment has tabled its report into workplace bullying, “Workplace bullying: we just want it to stop” [3] (‘Workplace Bullying Report’). The Committee made a total of 23 recommendations covering - The definition and prevalence of workplace bullying; - Legislative and regulatory changes; - Regulatory implementation; - Workplace cultures; - Tools for prevention and resolution; and - Enforcement and remedies.
- The NSW Public Service released its People Matter Survey results including a finding that almost half (48 percent) of respondents reported witnessing bullying at work in the last 12 months with 29 percent personally experiencing bullying at work in the last 12 months. Of those, who experienced bullying, only 21 percent submitted a formal complaint [4].
- These developments demonstrate that bullying in the workplace is widespread, serious and that much work needs to be done to eliminate this prevalent problem.
- There is, however, a shiny silver lining, in that each of these matters evidences a resolve and determination at regulator, government, judicial and individual level to challenge bullying behaviour and make a difference.
- In the spirit of the festive season, it is worth celebrating these achievements and resolving in the New Year to reject the notion that bullying is too hard to tackle and to renew a resolve to eliminate it.
Defining bullying – Australian Agreement within reach?
There remains much to be done. As a successful launching pad for addressing workplace bullying all organisations and particularly those tasked with responding and managing alleged bullying behaviours need an agreed Australia wide definition of workplace bullying of some permanency and stability, whether in a uniform Code of Practice or OHS regulations. In Victoria, Guidance Notes published by WorkSafe in 2003, 2009 and 2012 have each contained a slightly different explanation of what is bullying with, for example, later versions omitting definitions of the words “repeated” and “unreasonable”. Many organisations have their own definitions of bullying in their workplace policies and the term bullying is widely used loosely and inconsistently.
An unfortunate outcome of different jurisdictional or changing definitions of bullying is that the same behaviour may constitute bullying in some definitions and not others. More recent WorkSafe Victoria Guidance Note definitions appear to have lowered the threshold. Behaviour that may have not met the definition of bullying behaviour in 2003, may now qualify under the existing Guidance material that no longer defines bullying as “unreasonable behaviour”, but now refers to it as “characterised by persistent and repeated negative behaviour directed at an employee that creates and risk to health and safety” [5]. Different definitions also make it more difficult to build an Australian database of knowledge as to what constitutes bullying and what might have been, for example, legitimate criticism or direction.
Many regulators appear to support the following definition and the Workplace Bullying Report recommends that the following definition of bullying be adopted across all jurisdictions in Australia:
“Repeated, unreasonable behaviour directed towards a worker or group of workers, that creates a risk to health and safety”.
It is expected that this will be the definition included in Safe Work Australia’s Code of Practice “Preventing and Responding to Workplace Bullying” (Code of Practice) expected to be published in the first half of 2013 and establish a consistent definition for those states and territories that have adopted the harmonised OHS laws [6].
Worklogic agrees that this is a workable definition that has stood the test of time since it was first used in regulators’ guidance material. However, more explanatory material as to what “repeated” and “unreasonable” mean is required to assist those at the coalface to recognise bullying behaviour and to answer such questions as: Does “repeated” mean twice? If so, how long between the incidents? Or does it refer to persistent behaviour and if so what is persistent? Or is a pattern of behaviour required or must it be systematic? It would also be useful to define clearly from whose perspective does the decision maker decide if the behaviour is unreasonable or not and how to assess behaviour objectively.
WorkCover NSW guidance material already provides useful definitions of “repeated” as behaviour with a “persistent nature and can refer to a range of behaviours over time” and defines “unreasonable” as “behaviour that a reasonable person, having regard for the circumstances, would see as victimising, humiliating, undermining or threatening” [7] The Workplace Bullying Report appeared to accept and approve of these two further definitions as part of the definition of bullying [8]. Another subtly different definition of “repeated” is available in the South Australian Occupational Health, Safety and Welfare Act 1986 that defines bullying as “repeated and systematic” [9]. Such additional explanatory definitions are absent from the current Victorian guidance material and many workplace policies reviewed by Worklogic.
The Workplace Bullying Report notes that there is little widespread appreciation of what behaviour amounts to workplace bullying. Much clarity could be gained from ensuring that the three criteria (repeated, unreasonable and risk to health and safety) in the definition are adequately explained in uniform guidance material and properly and consistently applied when discussing and reporting bullying. Victims of bullying trying to work out what is happening to them and organisations deciding what they need to do in response will then be more able to address the behaviour and work to improve the culture that permitted such behaviour.
Examples of bullying behaviour
Even those with no awareness of regulators’ various definitions of workplace bullying would agree that Mr Andrews of the Mallee Laundry and Linen Services bullied his staff when he told a female employee she “should have been drowned at birth” and taunted another with names such as “porky”, “wog” and “big fat bush pig” and threatened to dissolve workers in acid if they made mistakes and forced staff to work up to 15 hours straight and timed their toilet breaks [10]. On the other hand, agreement is rare when the bullying is indirect or more subtle.
For example disagreement exists as to whether the specific examples provided in Safe Work Australia’s Draft Code of Practice in fact constitute bullying. The Coalition Members’ dissenting report stated that they “could not support a Code with clauses which are so subjective or plainly ridiculous”; namely, “not providing enough work” and “setting timelines that are difficult to achieve” and “eye rolling responses”. Worklogic notes, however, that many allegations of precisely this nature, while apparently trivial on their own, can, when reviewed in context amount to serious bullying with sometimes a higher than average negative risk to mental health because of their subtlety and the increased risk for the victim that their concerns will be trivialised or difficult to prove.
It is hoped that the recommendation in the Workplace Bullying Report that a national advisory service be created that provides practical and operational advice on what does and does not constitute bullying together with self-assessment and guidance material for workers and employers, will provide clear and helpful examples of bullying behaviour.
Conclusion
2012 ends with strong examples of how bullies can be called to account by regulators and the Workplace Bullying Report and NSW Public Service survey confirms that much needs to be done to eliminate bullying in the workplace. Fortunately, we have much to draw upon for 2013 in the Workplace Bullying Report that provides food for thought and a road map for future nationalised efforts to reduce the prevalence of bullying in the workplace.
[1] As reported in The Age, 6 December 2012 – http://www.theage.com.au/victoria/staff-found-bosss-bullying-attacks-harrowing-20121205-2avwc.html
[2] As reported in the Canberra Times 4 December 2012 – http://www.canberratimes.com.au/act-news/csiro-ordered-to-act-on-bullying-20121203-2arij.html
[3] A full copy of the report is available at http://www.aph.gov.au/parliamentary_business/committees/house_of_representatives_committees?url=ee/bullying/report/fullreport.pdf
[4] A full copy of the report is available at http://www.psc.nsw.gov.au/About-the-Public-Sector/People-Matter-Survey-2012
[5] WorkSafe Victoria, “Workplace Bullying – Prevention and Response” 29 October 2012 – http://www.worksafe.vic.gov.au/forms-and-publications/forms-and-publications/preventing-and-responding-to-bullying-at-work and http://www.worksafe.vic.gov.au/safety-and-prevention/health-and-safety-topics/workplace-bullying
[6] New South Wales, Queensland, Tasmania, the Australian Capital Territory, the Northern Territory, South Australia and the Commonwealth.
[7] WorkCover Authority of NSW – http://www.workcover.nsw.gov.au/newlegislation2012/health-and-safety-topics/human-behaviour/Pages/bullying.aspx
[8] See above n. 3, page 15.
[9] Occupational Health, Safety and Welfare Act 1986 (SA) section 55A(1). From 1 January 2013 South Australia’s Work Health and Safety Act 2012 (SA) will replace this Act and thereafter there will be no Australian jurisdiction with legislation that specifically refers to and defines workplace bullying.
[10] See above n.1
