24 Nov 2011

A Model Code of Practice on workplace bullying

by Joe Catanzariti, Millen Lo

The proposed introduction of a Model Code of Practice will require persons conducting a business or undertaking and its officers to do more to eliminate and minimise risks in relation to workplace bullying.

As part of the OHS harmonisation process, Safe Work Australia has released several draft model Work Health and Safety Codes of Practice including on "Preventing and Responding to Workplace Bullying" (the Draft Code). The Draft Code is open for public comment until 16 December 2011.

The Draft Code presents as an opportunity to better define what constitutes workplace bullying, identify the sources of legal obligation and provide guidance on how to prevent and address bullying in the workplace.

What is a Code of Practice?

Under the Model Work Health and Safety Act, codes of practice are intended to provide practical guidance for duty holders to achieve standards of health, safety and welfare. It is also intended that codes of practice will be admissible in court proceedings. For example, a court may regard a code of practice as evidence of what is known about a hazard, risk or control and may also rely on it when determining what is reasonably practicable in the circumstances.

Who are duty holders?

The Draft Code specifically recognises that everyone in the workplace has a legal responsibility in relation to preventing bullying. It also specifically refers to bullying as a hazard that extends beyond the physical health of workers but also to their emotional and mental health.

Under the Draft Code, persons conducting a "business or undertaking" have the primary duty under the Model Act to ensure, so far as is reasonably practicable, that workers and other persons are not exposed to health and safety risks arising from the business or undertaking.

This entails the duty-holder ensuring, so far as is practicable:

  • the provision and maintenance of a work environment that is without risk to health and safety;
  • the provision and maintenance of safe systems of work; and
  • the health of workers and the conditions of the workplace are monitored for the purpose of preventing illness or injury.

Persons conducting a business or undertaking are not restricted to employers and can include self-employed persons, principal contractors, persons with management or control of a workplace, designers, manufacturers, suppliers, importers or installers.

Persons whom are "officers" as defined in the Corporations Act 2001 also have specific duties that require them to exercise due diligence to ensure the business or undertaking complies with the Model Act and its regulations. The Draft Code provides that this due diligence obligation includes taking reasonable steps to eliminate or minimise risks in relation to bullying.

Workers themselves also have obligations to take reasonable care in relation to their own health and safety and that of others and comply with any reasonable instruction from the person conducting the business or undertaking.

How workplace bullying is defined

While there is no statutory definition of workplace bullying the Draft Code defines it as "repeated, unreasonable behaviour directed towards a worker or group of workers, that creates a risk to health and safety". This definition is the same that appears in WorkSafe Victoria's guide to preventing and responding to bullying at work.

Bullying is also referred to as being either direct (obvious) or indirect (subtle).

Examples of direct bullying provided include:

  • abusive, insulting or offensive language;
  • behaviour or language that frightens, humiliates, belittles or degrades, including criticism that is delivered with yelling or screaming;
  • harmful or offensive initiation practices.

Examples of indirect bullying provided include:

  • unreasonably overloading a person with work or not providing not enough work;
  • setting tasks that are unreasonably below or beyond a person's skill level;
  • deliberately excluding, isolating or marginalising a person from normal work activities;
  • withholding information that is vital for effective work performance.

Interestingly, the Draft Code suggests that conduct which is unintentional can nonetheless be bullying if the behaviours "should reasonably have been expected to cause" humiliation, offence, intimidation or distress.

The Draft Code also outlines what does not constitute workplace bullying which includes "reasonable action, carried out in a fair way".

Managing the risks of workplace bullying

The Draft Code provides that the best way to control bullying risks is to eliminate the causative factors. However, if that is not reasonably practicable, it suggests implementing measures to minimise risk.

Helpfully, the Draft Code suggests the following control measures should be considered:

  • managing the risks in the workplace (for example, focussing on building healthy cultures, leadership styles and systems of work);
  • developing a workplace bullying policy (either as a stand-alone or part of a WHS policy;
  • developing effective complaints resolution procedures;
  • providing information and training on workplace bullying to workers; and
  • encouraging reporting of workplace bullying incidents.

In addition, the Draft Code provides that once control measures are in place they should be checked and reviewed to ensure that they are effective in preventing and managing bullying behaviour.

What this means for employers

The OHS harmonisation process will, amongst other things, broaden the primary duty so that it applies beyond the traditional employer-employee arrangements and introduce new due diligence requirements for officers. Harmonisation will also bring about greater obligations to consult with workers in relation to health and safety.

Given so, in a practical sense, the control measures contemplated by the Draft Code will require persons conducting a business or undertaking to:

  • review how risks are managed in the workplace (bearing in mind workers in the workplace can be more than employees);
  • review existing workplace bullying policies to see if they are sufficiently broad to address interactions between all kinds of workers (not just employee to employee);
  • review existing complaints resolution procedures including considering to what extent issues raised by persons who are not employees but a worker nonetheless under the Model Act may raise issues and how they are addressed;
  • consider how awareness and training on workplace bullying is delivered, including by and to whom;
  • officers should be aware of how the business or undertaking ensures the workplace eliminates or otherwise minimises risks in relation to workplace bullying at the very least.

Thanks to Ned Overend for his help in writing this article.

This article was written when Joe was a partner at Clayton Utz and does not necessarily reflect his views as Vice-President of the Fair Work Commission.

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