Nowhere to hide – national anti-bullying laws take another step

The harmonisation of WHS legislation throughout Australia is affecting definitions and requirements for the handling of bullying and harassment complaints. A number of jurisdictions have now developed Codes of Practice for preventing and responding to bullying behaviour.

The move towards national bullying laws took a step closer this month with the document developed by the NSW and Victorian WorkSafe organisations on the Prevention of Workplace Bullying being adopted as a Code of Practice in the ACT. The Code has legal force and can be used by regulators wanting to prosecute.

The ACT’s Code of Practice on the prevention of workplace bullying is an essential tool for helping employers determine whether to deal with bullying complaints in-house or refer them to an external investigator, the Territory’s Work Safety Commissioner says. “I think the Code of Practice is absolutely essential; it clarifies for businesses exactly what they need to do to meet their safety duty in respect of bullying,” says Mark McCabe told OHS Alert.

“In particular, it spells out how to respond to bullying claims when they arise. Without a Code there’s a fair bit of ambiguity about how you might do that. the Code spells out in what circumstances you might investigate a case rather than just go to mediation, and it talks about how you might do that independently.”

The Code clarified circumstances that were so serious that “someone should be held accountable” and mediation would be inadequate” McCabe said. He said the Territory would consider replacing its Code of Practice on the prevention of bullying (which was based on NSW and Victorian guidance material) with the model national Code of Practice when it was finalised by Safe Work Australia.

The Code is clear that “setting performance goals, standards and deadlines”, “implementing organizational changes” and “informing a worker about unsatisfactory work performance” are not classified as bullying, although “organizational change” and “negative management styles” are classified as bullying “risk factors”.

Meanwhile, the national Safe Work Australia model Code of Practice has been a battleground between unions and employer groups. The ACTU wants single incidents of behaviour able to be classified as bullying and the right for union representatives to investigate claims of bullying.

Employer groups are worried about “systems of work” being classified as a bullying risk factor as well as the individual perceptions and biases of investigators dealing with complicated situations. Employer groups are also concerned about extra costs to employers associated with investigations, appeals, counselling and mediation, even when no allegation is proven.

The national Preventing and Responding to Bullying draft model Code of Practice is currently being revised in line with comment feedback and it is envisaged that materials will be finalized in the second half of this year.

Mr John Boardman iHR Australia’s Director Workplace Relations said “with the ever increasing incidences of bullying allegations and the growing risk of legal sanctions, getting your performance management processes  absolutely right, including the training of line managers, is essential for any business”.