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Prevention, resolution and recourse: responses to the workplace bullying inquiry

The federal government’s response to the House of Representatives inquiry into workplace bullying is a welcome development in preventing this workplace hazard. 19 of the 23 recommendations were supported…

Workplace relations minister Bill Shorten has largely supported the recommendations made by the House of Representatives inquiry into workplace bullying. AAP

The federal government’s response to the House of Representatives inquiry into workplace bullying is a welcome development in preventing this workplace hazard.

19 of the 23 recommendations were supported. A proposed change to the Fair Work Act, responding to the need to provide an opportunity for recourse following bullying, received all of the attention. It promised speedy resolution, fines of up to $33,000, and change enshrined in legislation. Individual recourse was a major theme at the inquiry, and action of this nature was predictable and necessary.

Under the proposal, the Fair Work Commission will be able to require employers to take actions to resolve and prevent bullying, and be able to refer the case to health and safety regulators for further investigation and enforcement.

Some were worried, albeit for different reasons, that the proposed amendments foreshadowed a shift towards dealing with bullying primarily through industrial mechanisms, rather than through health and safety mechanisms. Others were pleased. However, such a change is not really reflected in the rest of the government’s response. The headlines suggested a shift in focus to resolution and recourse, but the background is still firmly — and appropriately — rooted in prevention.

Other responses to the inquiry provide a foundation for the proposed changes to the Fair Work Act. Chief among these is the adoption of a national definition of bullying. No longer should we hear protestations that workplace bullying does not have a definition, as was said during one hearing of the inquiry.

The endorsement of the National Code of Practice on workplace bullying is a real step forward in communicating what can be done in businesses of all types and sizes to address this problem. Codes of practice outline what is known about a hazard, and the court can rely on a code when determining what could have been reasonably practicably done to control it. The Code adopts the national definition and is based on a health and safety approach. It will soon go for a second round of public comment. In line with the language of the recommendations, it should be promoted, implemented, and embedded in workplaces.

Support was given to a range of guidance and advisory materials being developed. These will assist employees in knowing when to report bullying (and when not to), and guide employers around confidentiality, transparency, and managing reports of bullying.

The anticipated advice hotline received in-principle support, though it seems likely that there will still be a role for health and safety regulators and the Fair Work Commission in providing advice and assistance.

A further set of recommendations that were supported by the government target health and safety regulators. Accredited training programs for inspectors will be developed, trends in bullying will be mapped over time with increased research and reporting, and cross agency approaches to bullying will be examined. Uniform approaches and sharing of data and practice across jurisdictions is really important. It is surprising and concerning that this has not yet occurred in a coordinated manner, and we need to see evidence of delivery on this as soon as possible.

Two notable recommendations that did not receive government support included the development of a mediation service trial and an investigation referral service. Consultation will be sought on investigation referral. Perceived and actual bias, and variation in practice and skills remain big problems for bullying investigations. A referral service, which assigns investigators on rotation, could help solve at least some of these.

Mediation for bullying remains controversial. Some academics and practitioners strongly advise against using mediation for bullying, due to power differences and the goal of getting people back to work, rather than establishing what actually happened.

We need to think more about bullying interventions used within organisations, assess their efficacy through good research, and further consider whether and how they relate to the wider framework of preventing risks to people’s health and safety. Championing best practice in psychosocial health and safety at work represent the longer term but essential components of the ongoing strategy. This will require education and attitudinal change.

Some of the strategies supported by the government may be criticised for increasing the burden of regulation. We should remember, however, that dealing with bulling is not new: guidance material on bullying has existed for around 10 years. That bullying is still occurring indicates that it was time for more serious action.

Some of the strategies may be criticised for inviting a wave of complaints. This should be expected, and planned for, when any health and safety issue is addressed in a more consistent way.

With careful planning, consultation and commitment, fears and myths around bullying and psychosocial issues at work can be worked through. The recommendations of this inquiry, if implemented as planned, are our best chance yet of reducing the impact bullying has on the health and wellbeing of working Australians.

Join the conversation

10 Comments sorted by

  1. Kevin Jones

    logged in via Twitter

    I think it may be useful to consider the current response to the workplace bullying accusations at CSIRO in light of the new Fair Work Commission structure proposed by Minister Shorten. How different it would have been for the complainants if they had had a timely response?

    I am one of those critical of the Minister's proposals due to the lack of attention on prevention strategies. Even a timely response occurs AFTER an incident and psychological stress, harm or damage.

    Also, if a workplace has a culture of bullying, should we just provide some compensation to the employee and allow them to move on to, hopefully, a less toxic workplace, or should we be reducing the number of toxic workplaces?

    We may see some preventative strategies emerge with the impending Code of Practice but all codes need enforcement to be effective. This is another challenge for Minister Shorten but one I don't anticipate occurring in this election year.

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    1. Carlo Caponecchia

      Senior Lecturer, School of Aviation at UNSW Australia

      In reply to Kevin Jones

      I agree Kevin on the importance of prevention. The way the inquiry went though, I thought it was highly likely that something might be done at the other end (resolution). I wanted to highlight here that those who were tasked with prevention previously are not "off the hook" so to speak with these developments.
      I agree that the implementation and enforcement of the Code is going to be the real test of whether prevention efforts are boosted.
      Challenging the frameworks that are brought to bear on this issue is important - we have to keep thinking about risk, and how to prevent it, rather than some of the more traditional frameworks that wait for things to go wrong before making any kind of response.

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    2. John McPhilbin

      Project Officer

      In reply to Kevin Jones

      Hi Kevin

      I speak with people on a daily basis who have had the misfortune of being thrown into a dysfunctional workers compensation system as the result of workplace bullying. Rehabilitation is not taken serious and their condition often deteriorates quite rapidly. My other concern is the amount of cases that are declined by insurers. My estimate is around 90%. These people often suffer severe depression, anxiety and many suffer from PTSD.

      Prevention is crucial, however, I shudder to think about how many people out there who have been seriously affected and who are not receiving adequate medical /psychological treatment. If the estimate of workplace bullying costing the economy between $6 and $36 billion I am wondering whether these people are being factored into the equation

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    3. Kevin Jones

      logged in via Facebook

      In reply to John McPhilbin

      The $6-$36 billion annual figure was always contentious and unhelpful. It showed that no one had given the cost adequate analysis and still no one has.

      My experience is that most people subjected to workplace bullying leave the job. I take it that these departures are never included in cost estimations and how could they?

      If one is experiencing bullying, it is also likely that that business does not have adequate support mechanisms or functional solutions. Once bullying occurs and harm is…

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    4. Carlo Caponecchia

      Senior Lecturer, School of Aviation at UNSW Australia

      In reply to Kevin Jones

      They may not have given figures, but that doesn't mean that there are no figures. There is ongoing debate about the appropriate methods used for analysis of prevalence (and hopefully a united definition will help now).
      One example: 29% of public sector workers in NSW said they had been bullied in the last 12 months (2012 data). Probably high, granted, due to methodology, but it seems you're suggesting that a more accurate figure might be so low that its negligible?

      I'd be interested in knowing what the evidence is for bullying being experienced less than people think, and what scales we're talking about.

      Thanks for some thought provoking comments!

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  2. John McPhilbin

    Project Officer

    Mediation? As you rightly note there is often a power imbalance that makes mediation ineffective.

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    1. Kevin Jones

      logged in via Twitter

      In reply to John McPhilbin

      John, I think "mediation" may need some explanation. Having not been in IR for over 30 year, mediation used to be a roundtable discussion of issues seeking compromise and resolution. But emotion and psychological issues are different from the IR argy-bargy. I would like to see mediation on psychosocial matters in the workplace be based on restorative justice, a proven mediation tool in this area.

      I don't think industrial or criminal law can adequately address the pain and hurt that can result from workplace bullying.

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    2. Carlo Caponecchia

      Senior Lecturer, School of Aviation at UNSW Australia

      In reply to Kevin Jones

      It's a good point you raise Kevin. There are lots of different types/models of mediation, some of which might be ok in certain circumstances and when used for certain purposes. I'm not sure that we've yet listed them all, nor systematically considered which might be best. Infact there is a need for more research about what interventions might work in various contexts or timeframes in bullying. That's something some colleagues and I are trying to address.

      Going back to the point of thinking from a risk frame - I often wonder how to rationalise mediation within a heath and safety frame. Is there an analogous intervention/tool that we'd use for any other hazard?

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  3. John McPhilbin

    Project Officer

    There will no doubt be protests from industry (they’ve started already) that proposed changes to workplace bullying laws will trigger an increase in false (spurious) claims. This is a possibility, however, the counter-argument is that there is a large percentage of workplace bullying targets who do not report for a number of obvious reasons. Either they accept bullying as a normal part of work culture; feel intimidated or embarrassed; worry that reporting bullying may reflect badly on them and affect their career prospects (that they may be labelled “weak” or “whinging”); aren’t sure how to deal with the problem or who to report it to; believe no-one will act on the problem; or fear retribution from the bully.

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  4. Bronwyn Meredith

    Adviser

    I'm struggling to work out how the Fair Work Commission proposal will work in practice. How will it equip itself to consider a matter in the 14-day timeframe? That is a really tight timeframe within which, presumably, the target and the alleged perpetrator will have to provide information and documents, and the FWS will have to familiarise itself with the facts of what could be a very complex situation and then make a well-grounded decision. Is this overly ambitious? Will the FWC have powers to investigate or require the provision of information and documents? Is the FWC going to recruit staff with the expertise needed to assess bullying complaints? I wonder if the government has really given this any thought.

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