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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.