A recent article from ‘OHS Alert’ highlights the increasing concerns at both State and Federal levels into the issue of bullying and harassment. Importantly, proposed legislation provides a clear definition of what constitutes bullying in the workplace which will in turn provide some clarity for employers.
An increasing trend in workplace settings is the prevalence of employees undergoing performance management to make unsubstantiated claims relating to bullying and take time off work for ‘stress related’ reasons.
We append the article for your consideration.
The parliamentary inquiry into the “scourge” of workplace bullying has declined to recommend a national equivalent of Brodie’s Law, instead calling for the development of a national advisory service to help employers and workers deal with the issue.
The Standing Committee on Education and Employment inquiry report, released this morning, also advises employers on how to draft and give effect to a workplace bullying-prevention policy.
Prime Minister Julia Gillard raised the possibility of nationalising Victoria’s Brodie’s Law in announcing the national inquiry in May.
Brodie’s Law is the colloquial name of a 2011 Victorian Crimes Act amendment that broadened the definition of “stalking” (for which jail terms of up to 10 years apply) to cover “serious” forms of bullying such as “threats and abusive words”.
It was named after Melbourne waitress Brodie Panlock, who took her own life in 2006 after being relentlessly bullied by co-workers.
According to the inquiry report, the “specific objective of a national Brodie’s Law cannot be met simply by the introduction of legislation by the Commonwealth”.
One submission to the inquiry noted that “constitutional limitations to the Commonwealth’s power… prevent it from legislating on anti-social behaviour such as bullying other than behaviour which involves electronic means”, it says.
The report says workers in all jurisdictions are protected from workplace bullying by OHS, anti-discrimination, workers’ compensation and criminal laws, but none of these frameworks, including Brodie’s Law, “provide an ‘all in one’ response to workplace bullying”.
“None provide both universal protection and recourse. Thus, workers are left to navigate the overlapping frameworks, which can be frustrating and confusing for targets of workplace bullying.
“The Committee recommends that the Commonwealth Government develop a national advisory service that provides practical and operational advice on what does and does not constitute workplace bullying, and offers self-assessment and guidance materials to workers and employers to determine whether behaviour meets the workplace bullying definition established in Recommendation 1 [see below].”
The report makes 23 recommendations, including for the development of the advisory service.
The Committee also recommends that:
- workplace bullying is defined nationally as “repeated, unreasonable behaviour directed towards a worker or group of workers, that creates a risk to health and safety;
- Safe Work Australia “urgently” finalises and endorses the draft model Code of Practice: Managing the Risk of Workplace Bullying
- SWA works with all jurisdictions to ensure the Code of Practice “is embedded in workplaces”
- SWA develops model WHS Regulations that “capture the minimum requirements for managing the risks of workplace bullying”
- the Federal Workplace Relations Minister conducts a feasibility study on establishing a Commonwealth-provided independent investigation referral service to deal with workplace bullying complaints
- the Government establishes a national service to provide advice on the issue to employers and workers;
- SWA develops an accredited bullying-prevention training program for managers and HSRs
- the Workplace Relations Minister considers introducing a voluntary national accreditation system to recognise and reward employers that achieve “best practice and meet defined standards of psychological health and safety”;
- the Federal Government seeks agreement from OHS regulators in all jurisdictions on a uniform compliance and enforcement policy relating to workplace bullying; an
- the Federal Government encourages all state and territory governments “to coordinate and collaborate to ensure that their criminal laws are as extensive as Brodie’s Law”.
The report also encourages employers to “consult, develop and enact” a bullying-prevention policy.
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