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07 Jun 2012

Workplace bullying - Time to have your say

by Shae McCartney, Alison Spivey

The Federal Government has announced a review into workplace bullying to determine if there is scope for national laws to support and assist management and prevention of bullying in the workplace.

Workplace bullying is a complex issue, and the best practice for managing and preventing workplace bullying has been, and continues to be, the subject of ongoing debate.

However, it is agreed workplace bullying can have a devastating impact on the individuals and workplace involved, and the economy at large.

In May 2012 the Federal Government announced a review of bullying in Australian workplaces in response to, amongst other things, figures released by the Productivity Commission estimating that workplace bullying costs the Australian economy between $6 billion and $36 billion each year.

The aim of the Review, which is to be conducted by the House of Representatives Standing Committee on Education and Employment, is to:

  • look at the nature, causes and extent of workplace bullying;
  • consider proposals to prevent bullying cultures developing in the workplace; and 
  • consider schemes to support individuals affected by bullying to return to work.

The Committee is due to report in November 2012.

It has been suggested that the Federal Government may look to introduce national laws to provide a consistent approach to managing and preventing workplace bullying across Australian workplaces.

What the terms of reference for the Review?

The terms of reference for the Review were released on 1 June 2012 and focus on:

  • the prevalence of workplace bullying in Australia and the experience of victims of workplace bullying;
  • the role of workplace cultures in preventing and responding to bullying and the capacity for workplace-based policies and procedures to influence the incidence and seriousness of workplace bullying;
  • the adequacy of existing education and support services to prevent and respond to workplace bullying and whether there are further opportunities to raise awareness of workplace bullying such as community forums;
  • whether there is scope to improve coordination between governments, regulators, health service providers and other stakeholders to address and prevent workplace bullying;
  • whether there are regulatory, administrative or cross-jurisdictional and international legal and policy gaps that should be addressed in the interests of enhancing protection against and providing an early response to workplace bullying, including through appropriate complaint mechanisms;
  • whether the existing regulatory frameworks provide a sufficient deterrent against workplace bullying;
  • the most appropriate ways of ensuring bullying culture or behaviours are not transferred from one workplace to another; and
  • possible improvements to the national evidence base on workplace bullying.

Can employers participate in the Review?

Stakeholders (including employers, employees and relevant organisations) have been invited to provide submissions to the Committee.

Submissions close on Friday, 29 June 2012.

What impact will the Review have on other workplace bullying initiatives?

Several recent initiatives for managing and preventing workplace bullying have included:

  • legislative change by State and Territory governments, such as "Brodie's Law" in Victoria, to provide greater protections for those who are bullied in the workplace; and 
  • Safe Work Australia developing a draft model "Code of Practice for Preventing and Responding to Workplace Bullying", which is intended to provide practical guidance for achieving the standards of health, safety and welfare required under the harmonised work health and safety legislation and regulations.

The terms of reference for the Review are broad and, as such, there is likely to be overlap between the matters considered by the Committee and other initiatives that have been, or are proposed to be, introduced. We are yet to see whether recommendations will address compensatory or criminal regimes.

However, the Federal Government has stated that the Review is intended to complement the work being undertaken by Safe Work Australia and the State and Territory governments in relation to workplace bullying.

What should employers be doing pending the outcome of the Review?

There are steps that employers can and should take to minimise risks arising from workplace bullying, irrespective of the outcome of the Review. These include:

  • identifying the risk factors for workplace bullying in the workplace;
  • taking steps to minimise and manage the risk factors, including developing appropriate policies and procedures, and ensuring that the policies and procedures are communicated to employees and regularly reviewed;
  • taking complaints of workplace bullying seriously; and
  • investigating complaints of workplace bullying in a timely manner.

It is important that when taking these steps employers provide procedural and substantive fairness to all, including those against whom a complaint of workplace bullying is made, as there are a number of potential pitfalls for employers.

We strongly recommend employers seek advice in relation to managing workplace bullying complaints in order to avoid these pitfalls.

 

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.