Melbourne employment lawyer Josh Bornstein has been leading the charge for change to the system. Photo: Jesse Marlow
The engineer for a multinational company endured a torrent of abuse from a foul-mouthed boss who was no stranger to complaints about inappropriate office conduct. ”He had experiences like coming into a meeting and the boss literally yelling, screaming, swearing and finger-pointing at him, picking up a bag and throwing it across the room,” recounts employment lawyer Ian Heathwood.
But immediately after the tirade, when the pair had to travel together to a meeting across town, the boss tried to ”play the ‘I’m your mate’ game”.
”The boss says, ‘Come on, mate, I really want to look after you and want to take you high places in the company’,” Heathwood recalls.
It’s precisely the type of case that a Gillard government overhaul of anti-bullying structures aims to tackle. To the displeasure of the business community, the government plans to give the Fair Work Commission new powers to address workplace bullying. The federal body will be able to make an order to prevent bullying from continuing. The aim is to stop the victimisation before it escalates to a scale that harms health and wellbeing. The Productivity Commission estimates workplace bullying costs the nation between $6 billion and $36 billion a year.
But the soon-to-be-legislated changes have triggered business warnings over a duplication of existing state regulatory bodies and interference with internal company investigations. The opposition fears Fair Work will be swamped with cases and the laws have been rushed. And experts have highlighted how views differ on the nature of workplace bullying, with one person’s perception of performance management being another’s victimisation.
Heathwood says the swearing, abusive boss was cleared by the company’s chief executive, who was taped saying: ”I would have done the same thing myself.”
”That employer had a completely false perception of acceptable behaviour and what constitutes bullying. The employee had a nervous breakdown and he never brought a claim. In this matter this new legislation would have been very helpful.”
A parliamentary committee last year described workplace bullying as a form of psychological violence that in extreme cases could lead victims to suicide.
But it found a regulatory ”minefield” confronted individual workers and employers dealing with bullying at work, confusing people about what action could be taken. Apart from the complication of what constitutes workplace bullying, some matters fall under other laws – such as anti-discrimination legislation and criminal codes.
WorkSafe Victoria health and safety general manager Lisa Sturzenegger says the highly personal and emotional nature of the issue makes it a challenge to respond to allegations.
WorkSafe Victoria received 6018 calls about workplace bullying in the 10 months to the end of April, about 5 per cent of which were passed on to the investigative unit. It has made 731 visits to workplaces and issued 84 improvement notices.
People may feel their work life is unpleasant or management practices are poor, but feeling upset or undervalued at work does not mean an individual is being bullied at work, Sturzenegger says.
Occupational health and safety laws ”turn on whether an employer or another person at work has failed in their duty to maintain a safe environment for others”.
Sturzenegger says there have been 31 WorkSafe prosecutions relating to bullying behaviour since 1999, and this is higher than in other states.
”Only a small proportion of complaints received by WorkSafe each year involve allegations of conduct that WorkSafe can pursue through the courts,” she says.
Under the Gillard government’s planned changes, a worker ”who reasonably believes that they have been bullied at work” will be able to apply to the Fair Work Commission for an order to stop the behaviour. The law, currently before the House of Representatives, defines workplace bullying as repeated unreasonable behaviour that creates a risk to health and safety.
The government argues this will provide a mechanism to help an individual worker resolve a bullying matter quickly and inexpensively, saying people currently face problems trying to promptly end the victimisation so they do not suffer further harm or injury.
”It’s just an additional fast-track mechanism. In the workplace game of snakes and ladders, this is a ladder,” Workplace Relations Minister Bill Shorten says.
Fair Work must start to deal with the matter within 14 days. But in a bid to ensure it is focused on prevention, orders cannot include the payment of money. Shorten says this means the new scheme won’t turn into a ”lawyers’ picnic”. Prevention is better than cure, he reasons, and this will give people a speedy way to stop bullying from continuing. But Fair Work may still choose to send cases back to state regulators.
”The status quo’s not working. State regulators are underfunded and overworked,” he says.
”There is a problem. The problem’s not been dealt with properly. The only people who oppose this are people who haven’t been bullied.”
Melbourne-based employment lawyer Josh Bornstein of Maurice Blackburn says the ”tiny” number of prosecutions under existing occupational health and safety bodies typically involve the most serious cases in which the bullying has led to major physical injuries.
”Employer groups know that, but because they’re programmed to argue against any form of regulation they’ll use that argument. I think that’s nonsense,” he says.
Nonetheless, Master Builders chief executive officer Wilhelm Harnisch says the bill was rushed without consultation with industry and warns of added compliance costs for small business.
”Because of that rushing through, proper consideration hasn’t been given to how it may conflict with state-based bullying legislation and that needs to be properly tested. There’d be nothing worse than if there were inconsistencies,” he says.
”Under the legislation, many forms of behaviour would be considered as bullying; the problem is getting some sort of clarity around that.”
The federal budget allocates an extra $21 million over four years to fund Fair Work’s extra activities. But Harnisch argues this may not be enough to deal with the likely volume of complaints ”because the bill does not have a proper screening process to validate claims”. And he is worried that subcontractors will be able to bring claims under the legislation.
Mining companies also are wary, with employers insisting they already act quickly to deal with complaints – a process that could be slowed down by a pending Fair Work intervention.
Industry figures say alleged bullies are usually suspended on full pay within 24 hours of a complaint being made. They point to a case alleged to have occurred on an offshore oil and gas industry vessel that was resolved with the help of a consultant within a week and a half.
Australian Mines and Metals Association executive director Scott Barklamb says bullying is a highly sensitive issue best handled by employers and independent investigators under the existing laws.
”Not only will the proposed new bullying jurisdiction likely duplicate existing measures, it will allow multiple actions to be brought in a variety of jurisdictions at the same time over the same course of conduct. This will not just overlap our existing, efficient processes, but complicate them and make matters less likely to be resolved in workplaces.”
Barklamb says it is important employers are not exposed to ”increasing numbers of frivolous and unmeritorious claims by setting the bar too low for accessing the proposed new jurisdiction”.
The government counters that the Fair Work Act already gives the Fair Work Commission the power to dismiss applications and order costs on the grounds they are frivolous or vexatious or without reasonable prospect of success.
”They can’t say it’s not a problem and on the other hand say it will be swamped,” Shorten says.
”You never solve a problem by not dealing with it. The Catholic Church has learnt that.”
Bornstein, an industrial relations lawyer for 15 years, has been leading the charge for change to the existing system. He says occupational health and safety bureaucrats don’t have the time or resources to deal properly with the issue.
”There’s been a gaping hole in the protection of people who experience workplace bullying; the law has only tended to help them once they have become very sick and lost their jobs,” he says.
”Companies investigating themselves can be like any other organisation investigating themselves – police, priests – there are limitations or deficiencies which become all too apparent in workplace bullying cases.”
The Coalition has indicated it will support the plans, but will try to amend the law to ensure workers have first tried to get help from an existing regulator or sought a resolution internally before coming to Fair Work.
The opposition also wants union officials’ conduct towards managers, employers and workers to be subject to scrutiny under the Fair Work bullying regime.
Opposition workplace relations spokesman Eric Abetz says the Coalition wants to put in place a filter to avoid the situation where ”somebody feels aggrieved during the morning and then storms into the Fair Work Commission and files an application at lunchtime”.
”That is not conductive to good workplace relations; it allows the Fair Work Commission to be clogged up in a manner that will bring the whole system into disrepute,” he says.
The Coalition, if elected on September 14, would take advice on what form its filter would take.
Senator Abetz says someone could talk to the person, see what the situation is and if it can be resolved without the need to file proceedings. Formal applications could be expensive to the taxpayer and ”potentially make the workplace even more poisonous than it was before”.
Shorten says people should try to deal with the matter within their own workplaces first, but this is not always possible – especially if the bully is the one to whom the victim must complain.
Australian Council of Trade Unions assistant secretary Michael Borowick says in the vast majority of cases people are reluctant to come forward with bullying complaints.
”I don’t think the sky will fall in,” he says.
”You won’t need a lawyer. You notify, you get a listing and up you go. It’ll be timely.”
Damian Panlock, whose 19-year-old daughter Brodie took her own life after suffering bullying at a Melbourne cafe in 2006, wants employers to admit the current system is not working.
”Tell them to have a look out there and see if anyone’s being bullied. Is their system working now? That’s why young people are taking their lives”
Panlock backs the new federal effort but cautions that Fair Work must ensure it is equipped with people with the expertise to deal with bullying.
”Everyone’s different and Brodie was a really nice person and she tried to help other people and she wasn’t weak but four males got together and thought, ‘This is the youngest one here, let’s destroy her’, and they did. That’s what’s going on out there. People are destroying others’ lives. It’s not just the person they destroy but the families connected to it. Until you’ve been through it, you don’t know what grief is. It doesn’t stop. We don’t want any other family to go through what we’re going through.”
Read more: http://www.theage.com.au/national/workplace-bullies-and-how-to-beat-them-20130531-2nh7o.html#ixzz2WGwtcENe