ARTICLE: "The sky is falling!" Opinion piece on Australia's anti-bullying laws - Know Bull! Australia :: Workplace anti-bullying website

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ARTICLE: "The sky is falling!" Opinion piece on Australia's anti-bullying laws

by Jennifer Wilkins, Founder of Know Bull!

I have to admit
I was slightly amused watching rumours circulating among business leaders, and advisors; lawyers; and HR and industrial relations 'specialists'prior to the introduction of the Fair Work Commission's (FWC) 'anti-bullying' jurisdiction on 01 Jan 2014. And if you believed the hype you couldn't help but draw the same conclusions...all hell was going to break loose...there was going to be an avalanche of least 70-80 per week...etc.

The New Year arrived, the laws came into place...and January came and went. So did February...and March as well. And did the ground beneath us shake from the thundering of a thousand feet beating a path to the FWC's doors? Ummm..."No". Did we hear the tumultuous voices of the aggrieved masses declaring in unison to be heard...asserting the right to bully-free workplaces? Ummm...that would another "No". So what exactly did we hear? Not much at all.

Where would we be without ill-informed propagandists making us a 'gift' of this fodder?

Anyway, another 'gift' came along this week in the shape of an article by a few HR bods who wanted to have a bit of a 'spit' about the FWC's new anti-bullying jurisdiction. After reading said article
— not only did I realise it was 5 mins of my life I'd never get back—I was struck with the curious thought that some industry members might actually believe the diatribe. And therein lays the dilemma of industry publicationsin the absence of a factual basis, well-reasoned argument, balanced thinking, and integrity—what you end up with is propaganda.

Let's cut to the chase

The FWC's anti-bullying laws are still fairly new, and the waters are currently being tested. Granted, there's still a bit of confusion what these laws mean for employees and employers. Contrary to some of the propaganda
—these laws are not  intended to encroach on, or erode business owners rights; create additional costs for employers; reduce productivity; or any similar nonsense. In other words...the sky is not  falling!

Further, the new anti-bullying laws are not  about vilifying the workplace bully or the company, business, or organisation that harbours them. At best, if a bullying complaint is found to be proved, the FWC can issue an order 'to stop'. In addition the FWC may also specifiy other the bully and the target be separated...or that an employer revise their policies and procedures if they're found lacking. Think of it this way...

There's an organisation where a workplace bully has been active for a couple of years. A number of staff have been treated badly...some have become ill...some may have even left. Then one 'target' decides enough is enough. They've asked HR to assist them in resolving the bullying, but their request falls on deaf ears—and the HR staff sides with the bully—their golf buddy. There's an anti-bulllying policy—but it sits on shelf gathering dust—and its contents aren't promoted within the workplace. The 'target' attempts to follow the procedural steps outlined in the bullying policy—but there's either no investigation, or the investigation is a sham. Instead of being resolved, the workplace bullying escalates—an action known as 'bully retribution'. The 'target' has exhausted all available steps and lodges a complaint with the FWC. By now, the workplace bullying is a daily event—and the target's health is declining. Symptoms include anxiety, reactive depression, fatigue, and hyper-obsessiveness. The quality of the target's work is negatively impacted—productivity declines, and mistakes may appear.

Enter the FWC. Based on the above scenario...What can you expect?

  • Firstly, the anti-bullying laws don't  apply to all  companies/organisations. For the laws to apply—the organisation needs to be a 'constitutionally covered business' —think pty ltd company, or an incorporated business. Commonwealth agencies at the Commonwealth level also come under the jurisdiction. Partnerships, sole or individual traders do not  fall under the jurisdiction, nor do military personnel. Neither do Not-For-Profit (NFP) entities—however there's a but. If as an NFP, your sole revenue is from Commonwealth funding, you don't come under the jurisdiction. BUT, if you've established various businesses, or conduct activities that generate revenue—you could be considered as a trading corporation and the jurisdiction will apply. Anyway, this is the kind of information you need to clarify for yourself, so get a copy of the FWC Benchbook (correct as at 2018), to make things a little clearer.

For the sake of the scenario, we'll say the organisation does fall under the anti-bullying legislation. Bear in mind though, the new rules apply not only to this organisation's employees—but contractors, sub-contractors, apprentices and work-experience placements, and volunteers. The definition of who is 'a worker' is outlined in the FWC Benchbook—read up on that as well.

  • From the FWC's point of view there's a few things they need to establish before hearing any workplace bullying claim:

1. The applicant reasonably believes they've been bullied at work
2. That the worker was bullied at work by an individual or group, and
3. There's a risk the bullying will continue

Once the FWC is satisfied the above has been established, they'll make any orders deemed necessary to prevent the worker being subjected to further workplace bullying.
Also note that the amendments to the Fair Work Act 2009 (Cth), now includes a definition of 'workplace bullying' [See Fair Work Act s.789FD(1)]:

Workplace bullying occurs when:
• an individual or group of individuals repeatedly behaves unreasonably towards a worker or a group of workers at work,
• the behaviour creates a risk to health and safety.

The key words are bolded in the FWC Benchbook, so we'll take a brief look at those. Repeatedly: workplace bullying consists of repeated behaviours, and is generally not a one-off incident. The behaviours used
don't need to be the same. What you're looking for is a 'pattern' —of ongoing (repeated) behaviours. Unreasonably: the pattern of behaviours needs to be of an unreasonable nature e.g. abuse, work sabotage, humiliation. Check the FWC Benchbook for examples. At work: is used in a contextual sense, meaning the bullying is 'of the workplace'...which is separate from 'outside the workplace' e.g.—a bullying neighbour. Also, 'at work' does not mean that only bullying behaviours in the physical workplace will be considered. As we know from experience, workplace bullying can extend past 9-5 hours on work premises—and into the targets home life and out-of-work hours. Risk to health and safety means exactly that...that the repeated and unreasonable behaviours by one or more people in/from the workplace —on another or others in/from the workplace — poses a risk to health and safety. Note there is no requirement for an injury to have already occurred —just the risk.

  • Based on the scenario, what kinds of orders could be made? (remember—this is only speculative). While the order 'to stop' bullying will be made, other possible orders might include:

1. Either the 'bully' or 'target' be moved to a separate work site (if another site exists)
2. They could be moved to opposing shifts (if shiftwork, or rotational roster is available)
3. If neither of these options are available—they could be moved further apart (physically) in the workplace
4. The 'bully' may receive an order to refrain from certain behaviours such as emailing, confronting, or admonishing the 'target', and that requests to the 'target' be made via a senior manager, or some other third party
5. The organisation may be required to bring their policies up to date, and to promote them among staff, and train senior managers
6. The 'bully' may be required to attend various 'workshops' or training such as 'Being a Better Manager 101'
7. The organisation will have a certain amount of time to comply, and could also be monitored for compliance.

Key Points (a.k.a. addressing some of the propaganda):

  • The goal of this legislation (once workplace bullying is found to exist)— is to prevent it from re-occurring—because workplace bullying creates a risk to health and safety

  • The legislation is not about extracting some amount of financial payment from the bully or the organisation. The only time 'money' will enter into the equation is if the orders are breached (not complied with). An organisation or individual could then be prosecuted and incur penalties— up to $51,000 for corporations, and $10,200 for individuals

  • The legislation is not about adding financial burden, or meddling in organisations rights to determine workers' hours or rosters. If two workers need to be separated to prevent workplace bullying re-occurring— and the organisation does  have additional work sites— then moving one worker to another site makes a lot of sense.

  • If the organisation doesn't have additional sites— some other arrangement will be worked out, and this will be achieved through consultation and agreement between the parties.

  • The Commission will not place an unworkable, or highly prohibitive order on an individual or organisation. Orders need to be workable and acceptable in order to achieve the goal: to prevent workplace bullying from re-occurring.  

  • And in the event thngs don't go as swimmingly as the organisation desires— they can have the matter relisted with the Commission for further conference.

  • Note there is no requirement that the target of the workplace bullying be suffering an 'injury' in order to have an anti-bullying claim heard. All that is required is that the bullying behaviours constitute a risk to health and safety. Although most assuredly, by the time of lodgement with the FWC, the target will be affected by varying degrees of injury—physically, emotionally, or both.

  • As the current legislation stands, workers can approach the FWC without notifying their organisation, and the FWC will deal with matters in 14 days. However, the then Abbott government was proposing changes to the jursdiction with the requirement of the bullying claim going to a gatekeeper first— before going to FWC. Possible gatekeepers would be the relevant WHS regulator in your State or Territory. So you need to keep an eye out for these potential changes.

  • Finally, some (propagandists) say the 14-day timeline for the organisation to respond to the FWC isn't sufficient time "for preparation". Realistically —a workplace policy about 'bullying' either exists or it doesn't. Staff and managers are either trained about the policy, or not. Said policy either outlines the procedures, remedies, and timelines, or it doesn't. By training staff in what is, and what isn't workplace bullying —organisations can reduce the possibility of vexatious claims. The truth is, authentic leaders won't quibble about the 14-day timeline —simply because they'd have their finger on the pulse of the organisation.

In conclusion, as far as where Know Bull! stands with regard to the anti-bullying laws— while it's a positive step— there's potential hiccups/flaws. Even though we forecasted the arrival of legislation of this nature in 2010, we believe that legislation on its own is not the sole solution, or necessarily the best solution, to the workplace bullying problem. However, we'll explore this further in a later article.

[13 April 2014,
updated November 2018]

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