The Preventing and Responding to Workplace Bullying Draft Bullying Code of Practice that was released for further public comment by Safe Work Australia on 3 June 2013.
Since “Brodie’s Case” in 2010, where a 19-year old woman committed suicide after being severely bullied at work, health and safety regulators have devoted significant attention and resources to warning employers about the risks of bullying in the workplace.
As part of Safe Work Australia’s (SWA) suite of Model Codes of Practice, SWA released for public comment the draft Preventing and Responding to Workplace Bullying Code of Practice (Draft Bullying Code) in 2011.
The Revised Draft Bullying Code: What has Changed?
The amended Draft Bullying Code clarifies a number of concerns many had with the previous version of the Draft Bullying Code. The Draft Bullying Code is more generalised and less prescriptive in its approach by leaving more room for organisations to use their existing policies and procedures to deal with bullying when it arises. The main “additional” obligation on duty-holders will now be to identify risks and hazards associated with bullying.
Definitions of Bullying
There is no longer any distinction between indirect/direct or intentional/unintentional bullying in the Draft Bullying Code. There is now one definition of bullying and a number of non-exhaustive examples of behaviours which could constitute bullying when unreasonable and repeated.
“Workplace bullying” is defined as “repeated and unreasonable behaviour directed towards a worker or a group of workers that creates a risk to health and safety”. The examples of bullying behaviour provided in the Draft Bullying Code are more general and clearly tie the definition back to the fact that it is the unreasonableness of the behaviour which constitutes bullying. The case studies have been removed, and there is more clarity surrounding what bullying is not.
“Reasonable management action” has been re-defined as “reasonable management action taken in a reasonable way”, and now includes termination of employment. The Draft Bullying Code also explains that harassment and discrimination are separate to bullying, and are dealt with in other jurisdictions. The Draft Bullying Code also states that “low-level workplace conflict” is not bullying, as well as “workplace violence”. The Draft Bullying Code correctly advises that incidents of workplace violence are criminal matters, and need to be dealt with by the Police.
Preventing Workplace Bullying
The original Draft Bullying Code required duty-holders to find “all of the things and situations” which could potentially contribute to bullying, and undertaking a formal risk assessment. This was criticised as imposing an unreasonably broad requirement which could not be met. The Draft Bullying Code also set out a number of “risk factors” which could lead to incidents of bullying. These were criticised during the initial public consultation period as inferring that legitimate occurrences such as an organisational restructure constitute bullying.
The revised Draft Bullying Code has removed the requirement to find “all of the things and situations” and prescribed list of “risk factors”, instead setting out a list of possible processes for identifying actual incidents of bullying or potential incidents of bullying. The Draft Bullying Code then sets out a number of general control measures, being general workplace management control measures and specific workplace bullying control measures.
The general control measures include positive workplace culture, safe systems of work, and development of respectful workplace relationships. The specific control measures include the implementation of a workplace bullying policy (a sample policy is attached as an appendix to the Draft Bullying Code), hazard reporting and response procedures, and provision of training to workers, supervisors and managers. Many organisations will already have these control measures in place as part of everyday practice. The revised Draft Bullying Code does not prescribe a particular method to achieving these measures, but provides suggestions which can be implemented when appropriate.
The revised Draft Bullying Code no longer suggests that an organisation should appoint contact officers. The original Draft Bullying Code stated that organisations “may” consider appointing contact officers to be a “confidential first point of contact” for employees who thought they were being bullied. While this reference was not strictly a requirement for compliance with the original Draft Bullying Code, because it was included as a possible “control measure”, most organisations would likely decide that contact officers were required to comply. The role of bullying contact officers was highly criticised during the initial public consultation period as not representing best practice. With the removal of any reference to contact officers in the Draft Bullying Code, organisations can make their own decision about dedicated bullying contact officers.
Responding to Workplace Bullying
The original Draft Bullying Code set out a prescribed step by step process for the resolution of bullying complaints. This was criticised as being impractical. The revised Draft Bullying Code now provides for an organisation to use an internal issues resolution process, or if the organisation does not have one, use the default procedure as set out in the WHS regulations. Where an internal resolution process has been unsuccessful, the revised Draft Bullying Code allows for an external investigation to take place.
The revised Draft Bullying Code also explicitly provides that health and safety representatives are not responsible for resolving complaints of bullying.
Investigations are no longer a mandatory part of complaint resolution. Investigations are only recommended by the Draft Bullying Code for serious risks to health and safety. The investigatory process is less prescribed under the revised Draft Bullying Code, setting out the procedural matters which parties to an investigation need to be informed about, such as who will conduct the investigation, the expected timeframe of the investigation, and whether or not a party can refuse to participate. Any vexatious or malicious complainant can be dealt with according to an organisation’s disciplinary processes.
The Revised Draft Bullying Code is now subject to a second public consultation period. Submissions need to be received by SWA by 15 July 2013.