For the past few years, there has been a big focus on the risks of bullying in the workplace. In this article we look at the Codes of Practice recently released by Safe Work Australia.

Safe Work Australia (SWA) has recently released:

  • 12 codes of practice including codes on hazardous manual tasks, confined spaces and how to manage and control asbestos in the workplace.
  • 15 additional draft codes of practice which include codes on workplace bullying, fatigue and managing hazardous chemical risks.

The regulations and codes of practice are available from the SafeWork Australia website (www.safeworkaustralia.gov.au).

Since “Brodie’s” case in 2010, health and safety regulators have devoted significant attention and resources to warning employers about the risks of bullying in the workplace. It is also an area of concern for other regulators, employers and insurers alike. Therefore, the draft code on workplace bullying is the focus of this article.

Draft Code – Preventing and responding to workplace bullying

The draft code provides useful guidance on what bullying is, how to prevent it becoming a health and safety risk and a recommended course of action if a complaint is made. It is a timely reminder for employers, who should consider their current processes in light of the draft code.

Broadly speaking the Code is divided into the following parts:

  1. Who has duties in relation to workplace bullying?

The primary duty rests with the “person conducting a business or undertaking” (PCBU) to provide and maintain a work environment that is without risk to health (including psychological health) and safety.

Officers (such as company directors and secretaries) must exercise due diligence to ensure that the business or undertaking complies with its obligations, including taking reasonable steps to ensure that it has and uses appropriate resources and processes to eliminate or minimise risks associated with bullying.

Workers have a secondary duty to take reasonable care for the health and safety of themselves and others at the workplace.

  1.  What is workplace bullying?

The draft code defines workplace bullying as “repeated unreasonable behaviour directed towards a worker or group of workers, that creates a risk to health and safety”.

Repeated behaviour” refers to the persistent nature of the behaviour, and may refer to a wide range of behaviours over time.

  • Unreasonable behaviour” means behaviour that a reasonable person, having regard to the circumstances, would see as victimising, humiliating, undermining or threatening.
  • The definition of bullying extends to direct, indirect, intentional or unintentional bullying. It specifically excludes reasonable performance management action (such as performance management processes).
  1.  How to prevent workplace bullying

The draft code recommends a risk management process involving the following steps:

  • identify bullying risk factors 
  • assess the likelihood of bullying occurring and its impact if it was to occur 
  • control the risks by eliminating them or minimising them as far as reasonably practicable, and
  • review the effectiveness of control measures.

Consultation with workers and health and safety representatives and, where relevant, other duty holders is necessary.

  • A PCBU should assess the risks to determine:
  • the frequency and severity of bullying behaviour 
  • whether any control measures are effective
  • what action should be taken to control the risks, and 
  • how urgently the action needs to be taken.

Some or all of the risks can be interrelated and should not be considered in isolation from one another.

  • Controlling the risk of workplace bullying requires that:
  • an appropriate workplace bullying policy is in place 
  • effective complaints procedures are developed (including the use of mediation in appropriate circumstances) 
  • information and training to raise awareness of bullying and its impact is provided, and
  • encourage reporting as early as possible.

The draft code requires prompt action in the event of a complaint. A person independent of the parties involved in the complaint should undertake the investigation.

Once control measures have been implemented, the draft code requires them to be reviewed on a regular basis to ensure that they are effective.

The draft code also includes a practical risk assessment tool that may assist organisations to ensure they are on the right track with their policies and procedures.