Is bullying that different between the States?

Looking at the current pathway to dealing with bullies in the workplace, would be like watching four football codes being played on the same field at the same time. The rules are different, the umpires have different standards, the area involved is different and the goals seem very different.    And that’s just the player’s perspective.

Imagine what it would look like from the people on the sideline, the employees, employers and professional advisors.

If the players cannot understand the decisions being made by the referees, how can the people in business know if they are playing by the right rules?
So, what does the current state of play look like? The analysis below is across:
• Legislation
• Courts
• Prosecution
• Policy Options
• Current Models
• Alternative Solution

Victoria has chosen to retain their exiting OHS laws and have added specific provisions to address bullying in the workplace. Commonly referred to as Brodie’s Law. NSW, Qld, ACT, NT and the Commonwealth have adopted the national OHS laws, which will enable them to adopt the Code of Practice “Preventing and Responding to Workplace Bullying” when it is finalised, later this year.

WA and SA are following a similar path to adopt the national OHS laws, leading to adoption of the Code of Practice “Preventing and Responding to Workplace Bullying”. The Commonwealth in the form of the House of Representatives “Education and Employment Committee” has announced an inquiry on ways to prevent workplace bullying. Inquiries by legislators can lead to legislation. Passing a law does not stop people breaking the law. Passing a law does not mean that bullies will be convicted and/or fined. Passing a law does however set out the community’s expectation that bullying behaviour is unacceptable and in Victoria this has been made a criminal act. It also means that when prosecuting or sentencing a bully, the justice system will treat the bully consistent with equivalent offences and apply similar criminal sanctions.

Passing a law has the practical affect that Courts no longer have to try to fit the bully’s actions within existing general offences or laws. The Courts can rely on the legislative framework and definitions to determine if a person is liable.

The Courts in each jurisdiction are at various stages of establishing the relationship between existing laws and how they apply to bullying behaviour. The current state of play in the workplace remains (subject to local variations) as:
• the employer has a duty of care to their employees to provide a safe system of work
• the employee has a critical role to ensure the workplace is safe
• to the extent that the employer fails to provide a safe system of work, the employer is liable under the civil system (workers compensation scheme or civil claim for damages) and criminal system (criminal law or work health and safety law)
• the employer must demonstrate they are educating staff, do responded to inappropriate behaviour and have dealt with instances of bullying

The current and proposed laws reflect different understanding of bullying and the means to address inappropriate behaviour in the workplace.

The disparity in approach of creating offences or requiring a risk assessment obscures the real obstacles that will continue to prevent bullying activities being addressed effectively.
The expectation at the time of passing a law and the context in seeking a conviction are very different. Firstly the bullying actions must be covered in terms of the legislation. Secondly there are a number of issues that will need to be weighed up before a case will proceed to court.

Where a bully’s actions amount to an offence, the decision to prosecute falls to the Director of Public Prosecutions or the State’s enforcement agency. Each Director of Public Prosecutions in Australia (and some enforcement agencies) has guidelines covering when matters will be prosecuted.

The strength of the case, the likelihood of the judge accepting the required legal positions and the likelihood of a jury accepting the evidence are all factors in whether action will be taken.   Accordingly commending the prosecution or continuing to trial is not always certain or straight forward.

The current responses to bullying falls across:
• Risk based under a general OHS duty
• Offence under an Act
• Combined approach where ineffective risk management process will be evidence in the prosecution of an offence

There are very clear views on how behaviours can be changed and include risk and from a risk perspective we now have a large body of information about managing risk which it breaks down to:
• Likelihood (of event occurring, person being affected, bully being caught, etc)
• Consequence (size of the fine, compensation, loss of work time)

From a legislative perspective Parliaments are driven to make laws for offences, based on three general theories:
• Deterrence
• Retribution
• Incapacitation

The risk and legislative perspectives provide the three present options in play:

We have seen the slow increase in managing risk in a professional manner, however we still see “gaming” when risk assessments are being prepared. It is clear that if a bully is in charge of creating the risk assessment, that the risks and their management are likely to be different from those of a person affected by bullying. The bully would down rate the consequences and the likelihood. A person affected by bullying would have the issue front of mind and therefore may tend to rate the likelihood and consequences higher.

There is extensive objective data on the consequences of bullying to the individual and to a business. At a management level, there are direct and indirect risks associated with bullying.   In reality the risks will be the same across industries. Given the other corporate and site risks, however the bullying risk may rank differently. In reality the risk measures will be similar. The measures to reduce the likelihood of bullying are likely to be the same or similar. Accordingly the only factor different across sites or industries is the likelihood of bullying occurring.   On that basis forcing industry through individual risk assessments to reach the same conclusion seems wasteful and misguided.

The passing of laws of itself creates red tape. Often the law empowers the collection of information and the ongoing reporting by business. It is this “delegated” red tape that burdens industry.   The absence of any guidance, such as under the Code of Practice, allows for a diverse range of solutions, none of which can be certain as being a defence, until that solution is tested in a court of law.  Given the issues with enforcement and interpretation of the law by the courts, there can be a significant lag time (decades) between passing the law and realising any benefit.  In a number of areas, the feedback process has led to more aggressive responses by government, without looking at why the legislation failed to deliver. More regulation and red tape is not a solution to a cultural issue.

Another instance of inappropriate behaviour in the workplace surrounded by another layer of bureaucracy is hardly helpful. In particular, bullies are likely to cross a number of boundaries, including discrimination and harassment. Training on appropriate behaviour that deals with negative behaviour such as bullying and harassment would simplify the impost on business.

Combined approach
The approach under the national OHS laws with a Code of Practice combines the law and risk assessment approaches. The law imposes a general obligation to manage OHS. This is followed up by a framework in the Code of Practice, leading to a detailed requirement at the local level.  This is one step closer to a more directive approach, however the focus of the Code of Practice is to help people to undertake a risk assessment, rather than providing the tools to prevent and deal with bullying.

A Code of Practice seems to be an unnecessary and time and resource consuming step in the solution. The Code of Practice approach provides a convoluted pathway to achieve the objective of a bully free workplace.   The replication of thousands of risk assessments for Bullying under the Code of Practice is another form of red tape. Bullying is a culture and personal issue. In that sense applying a risk assessment framework makes this a “process problem”.

The three present approaches to the problem of bullying in the workplace do not recognise the current best practice for managing problems that impact across society. Under the present approach there is also a one sided emphasis on the obligations of the employer.  The present approach appears to lack balance in placing the expectations of employers and employees on a common footing.

Where a problem exists in the community and is considered a universal problem, governments have adopted a broader approach then mere legislation. Governments have mandated solutions for OHS issues in range of industries. Construction sites and hospitality venues are two clear examples, where governments have mandated minimum requirements for these work environments.
In these are the mandated requirements have been implemented to deal with systemic and cultural problems that lead to the diversion of public funds and resources. Better managed worksite risks and more effective management of access to alcohol limit policing and health costs.

From the available material, it is clear that bullying:
• is a known problem that is well understood by policy makers
• is a known risk for workplaces in Australia
• is correlated with other offensive behaviour such as discrimination and harassment
• detrimental for people and for business
• commands significant public and private resources

For similar circumstances, governments around Australia have developed a multipronged approach to change cultural attitudes. These solutions have included:
• criminalisation – clear laws on what is an offense
• awareness – community advertising
• prosecution – support for the laws
• mandated training – skilling people to prevent and manage risks

In the case of workplace bullying what is missing is a clear guideline for business and people that makes sense at the operational level, such as a guideline for appropriate behaviour in the workplace that can be easily implemented.

The guideline should bring together the minimum standards of behaviour expressed across discrimination, harassment and bullying, be supported by appropriate education on appropriate behaviour and contain practical tools to develop skills for working in the workplace.