While workplace bullying is a serious public policy problem, employment lawyer Josh Bornstein writes that our existing legal and policy settings have been a resounding failure.
The Tea Party politics that engulfed the federal Parliament last week succeeded in achieving one of its objectives: drowning out the Federal Government’s public policy initiatives in education and the National Disability Insurance Scheme.
Although you would be forgiven for not noticing it, a parliamentary inquiry’s report on workplace bullying was handed down. The report was prepared by the House of Representatives Standing Committee on Education and Employment.
In the same week, a report into the federal public sector found that about one in six federal public servants believe that they were harassed in the workplace in 2011-12. Other media reports highlighted allegations of a ”systematic and organised form of bullying” within the Department of Parliamentary Services and alleged chronic bullying issues within the Victorian ambulance service.
In other words, it was more or less an average week in the reporting of workplace bullying problems.
This brings me to the crux of the matter. Workplace bullying is everywhere. If you haven’t directly experienced it or witnessed it, it is odds-on that it has affected a family member.
In 2010, the Productivity Commission reported that workplace bullying cost the Australian economy at least $6 billion per annum. If you follow their logic, since then at least $12 billion has been blown in health, social security and costs to workplaces. The report also found that existing Occupational Health and Safety regulation was ineffectual, that OHS inspectors found (PDF) the issue too difficult and that “some inspectors reported that they were reluctant to handle psychosocial complaints”.
So the parliamentary report was timely.
Given the scale of the problem, the report made a reasonable fist of things. Amongst the recommendations were the predictable and commendable: the promotion of a uniform definition, an enhanced Code of Practise for all workplaces, better training for employers and OHS inspectors.
It left the best to last. Recommendation 23 states that the Federal Government should take steps to “allow an individual right of recourse for people who are targeted by workplace bullying to seek remedies through an adjudicative process”. In other words, bullying victims should be able to sue.
To those that think victims already enjoy that right, think again. Workplace bullying is not illegal. The words cannot be found on our statute books.
Some victims of workplace bullying can sue for damages for negligence, provided that they are severely psychiatrically damaged. This means that such cases invariably occur years after the bullying took place. Victims can also complain to the relevant OHS inspectorate, which conducts an investigation in a tiny minority of cases and prosecutes, based on my estimates, in less than 1 per cent of cases. The last bullying prosecution that I can recall was successful some four years after the victim had suicided.
In Victoria, we have Brodie’s Law, which is often presented as an anti-bullying law, but falls well short. It is a stalking law and has never been used since its introduction. It doesn’t apply to over 95 per cent of cases. It should not be replicated nationally.
So while we have a serious public policy problem, our existing legal and policy settings have been a resounding failure. That much is common ground.
Workplace bullying has been quarantined in the OHS and personal injury policy sub-culture for far too long. It needs to be “mainstreamed” by introducing a federal civil law which gives employees access to an early response process to allow them to bring a complaint to a tribunal well before their health and employment are destroyed.
We need to understand and value the notion that we should all work in a bully-free workplace. To do that, we need an explicit anti-bullying law that is practical and accessible. For this reason, the Parliamentary Report is to be commended for Recommendation 23. The question remains whether the Federal Government will take the opportunity to introduce an important workplace reform.
Since 2010, Julia Gillard has withstood and survived an extraordinary amount of denigration, abuse and vilification. Much of the invective has been directed at her by the Opposition and its aggressive leader, Tony Abbott. Week after week, month after month, Tony Abbott has made highly personal attacks on Gillard culminating most recently in Abbott and his Opposition colleagues inferring that she breached criminal law while all the while steadfastly refusing to take the allegation to the police. As Alexander Pope wrote: “Willing to wound, and yet afraid to strike.”
And on October 10, Gillard gave her remarkable speech engendering an electric response both within Australia and abroad. After months of appearing to simply absorb torrents of hectoring and abuse, Gillard stood up to behaviour that many of us perceive as bullying, and fought back. In these situations, our sympathies clearly lie with the underdog, albeit one very, very tough underdog.
In 2013, Gillard is well-positioned to introduce a new anti-bullying law. What will the Opposition do? I predict the law will be fiercely opposed. Employer groups have already made the sort of noises that suggest they will strongly campaign against such a law. The floodgates argument will be made, too much regulation and red tape, the system will be flooded with vexatious claims, we should have enhanced OHS compliance… Similar rhetoric was used to argue against anti-discrimination laws 30 years ago.
Workplace bullying is the new frontier of workplace obligations and rights. For some time now, the Business Council of Australia, Australian Industry Group and Australian Mines and Metals Association have been conducting a campaign against the Fair Work Act. Bill Shorten’s response has been muted. But the Minister for Workplace Relations has the opportunity to go on the front foot in arguing for a new law aimed at improving productivity with some helpful Productivity Commission findings under his arm. Why are employer groups hammering the Federal Government with unscientific and highly tenuous links between the Fair Work Act and productivity? Why won’t they support a concrete reform geared to minimising multi-billion dollar productivity costs?