rss
11

Workplace Bullying and the Work Health and Safety Act 2012

by Bernie Althofer AFAIM, Managing Director of EGL I Assessments Pty Ltd

The OHS harmonization process will revolutionise how individuals and organisations approach workplace bullying. If it doesn’t, workplace bullying will continue as a critical physical and psychological issue affecting individuals and organisations forever.

So far in Australia, there have been relatively few prosecutions of organisations or individuals for health and safety breaches relating to workplace bullying. However, the recent successful prosecution of and employer and employees linked to the death of Brodie Panlock in Victoria may be the first step as Governments are starting to view deadly implications of the short, medium and long term and sometimes fatal impact of this insidious practice.

Workplace Bullying OverhaulDespite publicity generated by Government Departments and strong media interest when there has been a death following a workplace bullying incident, I believe that many public and private sector organisations are being lulled into a false sense of security. Lack of data, small numbers of allegations dealt with quickly, or individuals not reporting incidents create an illusionary perception that ‘all is well’ and ‘we are doing enough.’

The tides of change are coming and as every day goes by, the tide is picking up strength just like a tsunami. What is this tide of change? In a nutshell, it is the Work Health and Safety Act that is due to be implemented in January 2012. Will it make a difference?

I believe that some of the changes will have a dramatic affect on how executive officers think about, and even commit themselves to the notion of work health and safety. They will have to about the physical and the psychological aspects if they are to meet their obligations and show that they can meet due diligence requirements.

Barry Sherriff and Michael Tooma have written an excellent, user friendly publication that is produced by CCH. I believe the way that they have interpreted the legislation has resulted in the publication of the book ‘Understanding the Model Work Health and Safety Act’. Their explanations of various definitions and what they actually mean gives credence to the belief that the tides of change are coming.

It is not intended to reproduce all the definitions covered by Sherriff and Tooma, but I am going to refer to few where I believe public and private sector agencies need to focus in terms of workplace bullying.

Officer

Executives might be blissfully unaware that changes to the legislation means that there is every possibility that they will be considered an ‘officer’ under the model WHS Act, and as such they must exercise due diligence to ensure that there organization complies with its duties under the legislation. Sherriff and Tooma point out that the term “officer” has the same definition as it has in the Corporations Act 2001. They also indicate that the definition is extended to apply to officers of the Crown by s. 244 of the model WHS Act. So, are you an officer? Sherriff and Tooma (2010:32) provide a list in relation to who is an officer.

Who is and who is not an officer in your organisation?

They also discuss due diligence and provide some discussion as to what is meant by due diligence. It is interesting to note that Sherriff and Tooma (2010:33) indicate that officers need to make themselves aware of changes to legislation and developments in case law as well as Australian standards.  Does this apply to workplace bullying? Well yes, it does. Courts, Commissions and Tribunals are continually making decisions that impact directly and indirectly on individuals and organisations. Whilst some organisations may cut back on training, it is essential that the Board and Executive officers be regularly briefed or involved in training sessions so that they can maintain currency in trends and issues and even decisions associated with workplace bullying.

Cutting back on training may even have a negative impact on how ‘officers’ demonstrate that they have met their obligations or fulfilled due diligence requirements.

Worker

Some things in relation to workplace health and safety might not change dramatically, but the definition of a worker is worth considering. As Sherriff and Tooma (2010:52) indicate, a person is a “worker” if they carry out work in any capacity for a PCBU. It is a broad definition, but they also indicate that it ‘includes work as an employee, a contractor, a subcontractor, an employee of a contractor or subcontractor, an employee of a labour hire company, an outworker, an apprentice, a trainee, a student gaining work experience, or even a volunteer.

Each of the ‘workers’ identified above can at any stage be involved in a workplace bullying incident so it is important that the safe system of work, including the prevention, detection and resolution of workplace bullying cover these people. The task is to read your current policy and see if the definition of worker meets this requirement.

Does your policy cover those ‘workers’ in terms of workplace bullying?

Who is a person at a workplace?

There are some subtle changes to the meaning of ‘who is a person at a workplace?’ Given that workplace bullying can involve internal and external employees or customers, this is an important definition. As Sherriff and Tooma (2010:53) indicate, ‘the duty of care of a person at a workplace is intended to capture visitors to workplaces, such as customers and clients, passers-by, relatives and associates of workers, and trespassers’.

Does your workplace bullying policy cover this definition?

What is a workplace?

Workplace has been mentioned several times. Workplace bullying can happen across a diverse range of locations and a key example of this is ‘cyber bullying’ or stalking (a criminal offence). It is important that employers and employees have a detailed understanding of this section. Sherriff and Tooma (2010:53) indicate that:

‘a workplace is defined as a place where work is carried out for a business or for an undertaking. It includes any place where a worker goes, or is likely to be, while at work (for example, a vehicle, a vessel, an aircraft or other mobile structure, any waters and any installation on land, and on the bed of any waters or floating on any waters). As such, not only are factories, shops, construction sites and offices workplaces, but roads, homes, national parks, schools, hotels, airports, aeroplanes, ports and ships are also workplaces when people are working there. Indeed, any place can be transformed into a workplace if people work there.’

So what is the relevance of that definition to workplace bullying? Workplace bullying can occur in any of the above places, and can be committed by employees of the organisation, or by employees of other organisations. How does your workplace bullying policy define workplace? Is it defined in your health and safety policy, or in some other document that employees hardly ever refer to?

Action

Given that Courts, Commissions and Tribunals appear to have taken a broad view about workplaces and what is workplace related, it is important that employees understand the parameters in which they operate. For example, the birthday bash of work colleagues held in an off site location may be considered work related if an event that occurs at the party site is discussed in the workplace proper.

Some organisations will allow employees to attend post event functions e.g. after a Conference, but ‘kick on events’ may occur after the post event functions. Depending on the circumstances, a ‘kick on event’ may be considered work related, or even a workplace.  From time to time, allegations of sexual harassment and bullying arise following such events, and in some cases, excessive consumption of liquor has occurred.

Changes to the workplace, broadening of definitions and allegations of all forms of inappropriate behaviour can result in adverse publicity and damage to individual and organisational reputations.

Is there a need for panic?  Well, no not at the moment.

However, if I were an Executive in the public or private sector, I would want to make sure that I could meet all the obligations placed on me through the changes to the Work Health and Safety Act and I would to be able to demonstrate that I could meet due diligence requirements. I would not to be sitting in some Court, Commission or Tribunal trying to explain why I had failed in my duties as an ‘officer’. I don’t think like would like to be explaining to the CEO or to the Board about how my inactions failed the organisation.

At the same time, if I was an employee giving evidence in a Court, Commission or Tribunal as to why I had committed a breach of work health and safety, I would want to know the answers.

What should I do?

Executive officers should be getting briefings from their health and safety personnel.

Health and safety personnel should be working hand in glove with HR, Risk Managers, and other key personnel concerned with managing physical and psychological hazards in their organizations.

Employees should approach their unions or health and safety personnel to find out what their obligations are and what they have to do meet them.

Health and Safety policies and procedures, along with various HR policies should be reviewed to ensure that they meet the requirements of the Work Health and Safety Act.

In the meantime, publications such as that listed in the references provide a very good understanding of the key issues identified in this short paper.

Alternatively, there are a number of Safety Conferences being held between now and 2012 where key note speakers address the Work Health and Safety Act. I have been to several of these, and the Melbourne SIA featured the eloquence of Barry Sherriff of Norton Rose explaining in a no-nonsense manner just how the new Act is going to impact on organisations and individuals.

References

Sherriff, B. & Tooma, M. (2010) Understanding the Model Work Health and Safety Act. CCH AUSTRALIA LIMITED. Printed in Australia by McPherson’s Printing Group. ISBN: 978 1 921593 72 7.

Enhanced by Zemanta

About the Author

Joanne Wallace is our resident "Safety Guru". Joanne has provided advice on safety management for the past 10 years and written hundreds of articles on safety issues and tips. Joanne has experience in many industries ranging from manufacturing, food processing, timber milling, retail, office and wholesaling providing her with knowledge and experience managing risk and injuries in these industries.

Comments (11)

Trackback URL | Comments RSS Feed

  1. How does an organisation go about identifying the level of risk exposure that might exist if workplace bullying is bubbling away under the surface? Perhaps an audit should be conducted, but what questions would be asked? What happens if you or your organisation avoid or defer difficult conversations about workplace bullying? What if there is a culture of tolerance or acceptability when it comes to workplace bullying?
    What price do you put on your personal reputation or that of your organisation?
    If you are a public or private sector employer, you might like to know:
    How much income did your organisation earn as a result of a single workplace bullying incident?
    Did workplace bullying contribute towards achieving the aims and objectives of your organisation?
    How much business does a workplace bullying incident generate?
    How does workplace bullying improve customer service, increase productivity, benefit shareholders, investors or taxpayers or even add value to your brand name or reputation?
    How does your organisation benefit from the adverse publicity generated from workplace bullying?
    Will your actions (or those of your employees) result in findings of unfair dismissal, breach of employment contract or financial penalties being imposed by a Court, Commission or Tribunal?
    The obligations set out in the Work Health and Safety Act may put some employers and employees in situations whereby they need to provide answers to the above questions. The months are quickly ticking by so it would seem opportune to consider auditing your policies and procedures to see what your level of risk exposure is. For some, the audit may provide an assurance that all systems and processes are in place and the controls are working well. For others, the audit may provide organisations with the opportunity to revisit and update policies and procedures. After all, it is better to plan for the unexpected, rather than be caught out.

  2. [...] This post was mentioned on Twitter by Barbelle. Barbelle said: RT @waynepatterson great article on workplace bullying by one of Australia's foremost experts http://lnkd.in/GtbNwp Xlnt on WHS Act too! [...]

  3. I had a very interesting conversation with a senior manager who just happens to work in a ‘toxic workplace’. Despite having raised the issue of workplace bullying, staff conflict, low morale and a number of other issues, her manager does not seem interested in ‘dealing’ with the issues. It appears that the lack of interest translates into something about ‘rocking the boat’. The senior manager said that the toxic workplace is just like domestic violence in that ‘you get bashed every day at work and then come back for more’. What a sad indictment on a workplace that allow this approach to fester. Perhaps there is a major litigation issue lurking in the background.

  4. I went to the WA Safety Conference and several speakers confirmed my previously expressed views about the Harmonisation process and workplace bullying. A key word that I believe will be a critical determinant in whether or not you can defend your actions is ASSURANCE. It was clear that fingerpointing and expecting that someone else should have done something might not be in your best interests. Certainly from a health and safety aspect, the focus will be on you. You can expect to be asked “what did you do?” You might also asked “What did you do to get assurance?” You might indicate that you had a network in place and it was their job to keep you informed, or you might say that you left your office and walked around the workshop floor and tested systems and processes by asking questions. Apply this thought process to workplace bullying. You might hear rumours of workplace bullying so it might be important to get out of your comfort zone and go and ask some questions. After all, you don’t want to be surprised by the left field questions when you are sitting in a Court, Commission or Tribunal defending your actions (or lack thereof). Great conference, great speakers and a great place to find out what key issues are going to impact on workplaces with the advent of the Work Health and Safety Act 2012.

  5. I was talking with a CEO recently about future directions of workplace bullying. “Why is that we expect everyone else to do the right thing when politicians obviously use bullying tactics on a day to day basis?” was the crux of his comment. True, some politicians do use what most of us would accept as unreasonable behaviours, but then again, we elect them. Yes, we have heard some of them say “It’s a tough game, and you have to be tough.” That does not excuse verbal abuse, threats or other forms of abuse. There is nothing wrong with treating others with respect and dignity. Two politicians can have ideological differences (as can two people in the workplace) and agree to disagree without abusing the other. Politicians like CEO’s, executive officers and others in leadership or managerial positions are expected to lead by example. They should be living the behaviours they want the world to adopt, and it would make it so much easier to create safer (and bullying free) workplaces if there were more role models in higher offices. Yes, from time to time, they will do or say something that is offensive, intimidating or demeaning, and this should not be the day to day accepted behaviours that we as a society either condone or tolerate or just end up accepting.

  6. How does your risk management work in relation to workplace bullying and other counterproductive behaviours? I was talking with a risk management co-ordinator recently and believe it or not, this person only deals with issues. Workplace bullying is not an issue according to his definition, so it does not fall within his area or responsibility. If this is the case, who is responsible for ensuring that risk management strategies are identified or even implemented in an organisation? Does the responsibility lie within the HR Department (with no connection to the Risk Management Co-ordinator) or does responsibility rest with the Health and Safety Section? How does an organisation respond if a ‘co-ordinated’ approach is not being taken? I would suggest that failing to consult and communicate across a range of key areas, there would be an increased risk that an adhoc approach would be taken. As an Officer within an organisation, it might be worthwhile asking the question about how the system does work. As mentioned in previous comments, if you are sitting in a Court, Commission or Tribunal trying to answer the question, it will be too late to plead ignorance. The Model Work Health and Safety Act 2012 contains some important changes about the role and responsibilities of Officers and what they have to do to show that they can meet due diligence requirements. By the way, has your organisation started the Audit in relation to compliance requirements? If not, it might be time to start.

  7. Melissa Littleford says:

    Hi Bernie,

    In my experience some months ago at the relevant time in question: i would have welcomed a defined approach of who took/acknowledged responsibility for OHS (policy and procedures). In terms of OHS at my workplace and speaking as an employee i needed (all staff needed) to know what was deemed adhereing to the OHS Act. Is it the Manager? Is it the HR Department?

    My point – i witnessed an adhoch approach as there was no ‘Risk Assessment procedure.’ (Why does the need for organisations to have cryptic or deficient work systems with regard to OHS: at there own peril: counterproductive – a head in the sand approach – does NOT work!)

    Let’s hope for that ALL organisation’s big or small that they idopt and demonstrate OHS compliance and proactive behaviours. I agree with Bernie the first step for any organisation is the need to conduct an Audit to identify the ‘due diligence requirements’.

    Why am i writing here in this forum?

    I was bullied at work – it’s affected my family, my WHOLE way of life and my mobility.

    I am calling on the NEED FOR UPPER MANAGEMENT in every organisation (dominant idealogy) to ensure that:
    1. The organisation DOES have an Anti-Bullying policy
    2. A safe system of work,
    3. A Consultation process with employees – that is held in an ‘objective’ manner.
    4. The need for ‘objective process’ to identify caustic group ‘norms’. (identifying training needs, clear written policies and procedures that communicate what is ‘accepted behaviours and what ARE NOT’ to name a few)
    5. An ‘objective’ process that includes the prevention, detection and resolution of workplace bullying.
    6. The need is for any meeting/consultation held by upper management to be held in a neutral location with adequate notice (time) and for the employee to have a ‘support person.’

    Surely these are ‘resonable requests’! Granted, i would hope a large number of organisations already have something similar to the above in practice.

    Now maybe a good time to review your organisation’s current policy on Anti-Bullying with a view to look forward to 2012 as the new Act is fast approaching.

    Kind regards,
    Melissa Littleford

  8. stephanie says:

    Interesting article. Do you think workplaces take bullying seriously? Bernie, you mentioned that manager who had no interest in dealing with the issue – why do you think that is?

    There’s a breakfast event with ‘Bullying’ as the theme which will be held in WA on August 26th – maybe you could check it out https://www.siwa.org.au/SitePages/SiwaEvent.aspx?ItemID=6

  9. Do I think workplaces take bullying seriously? In the main, I that there are a few who treat it seriously but there is little publicity generated about what they do. I think that many organisations have developed policies and procedures and circulated them. Is this being effective in preventing, detecting and resolving workplace bullying and harassment? In most cases, I would say no and I will qualify that by saying this:
    Resolution options generally give the victim/target the option of doing nothing – when the victim/target finds out what is involved in the options available, the personal and financial costs – they do nothing
    Policies and procedures are circulated by way of the intranet – training only focuses on the policy and procedures for the general workers but can be more detailed for support personnel
    There is a silo approach taken in relation to the policy so there is no clear ‘ownership’ of the policy
    Managers and supervisors receive little to no training in managing workplace conflicts
    Support networks, HR and even OHS professionals are viewed as the ‘go to people’
    Managers and supervisors can ‘flick pass’ a ‘reported incident’t to HR or OHS as they don’t believe that they are personally responsible for investigating or managing the incident
    Workplace bullying and harassment are only two of many hazards and risks to be managed
    Lack of data indicating prevalence and incidence rate can create perception that bullying/harassment is not a major risk exposure
    No real understanding of the costs that are incurred either by the victim/target, the alleged bully or the organisation – has to consider more than the claim and investigation costs
    No real systems or processes in place to maintain currency of knowledge regarding trends and issues, or Court/Commission or Tribunal decisions e.g. Fair Work Australia etc
    It’s all too hard – silo approach taken because organisations don’t want or have time to review/change other related systems or processes e.g. recruitment/selection and placement processes, performance management and discipline processes
    Investigation processes limited or constrained by time e.g. funding from Injury Claims bodies, or workplace culture e.g. everyone connected to somebody and personal promotional opportunities may be impacted for negative investigation reports
    Executives not being provided with reality checks regarding level of risk exposure e.g. workers saying one thing to managers, who then put their own ‘spin’ on the topic and provide a ‘rosy’ view of the workplace
    Readers comments being made on various media sites indicating ‘problems’ with ‘bullying’ managerial practices – damage to reputation, breaches of social media policy, breaches of Code of Conduct, fear of internal systems and processes that allow reporting of concerns

    I know that in my book I suggested that people should be prepared for the day they will be involved in a workplace bullying incident either as the victim/target, the alleged bully, the organisation or even as a witness/bystander. I think if people start to understand the magnitude of the problem and that taxpayers pay for bullying costs from the public sector and the general community consumer pays for private sector bullying, they may start to understand why silence can no longer be accepted.

    Unfortunately even the deaths of a few people from workplace bullying have created some interest and some legislative changes, it seems that there is still a long way to go in getting some real changes.

    I should point out that there are a number of other forums where extensive discussion has been and continues to occur. There is little doubt that bullying is an emotive topic and as many contributors continue to say, “It needs to change”. I believe I said on another site today that “indivually it can be hard to make changes, but collectively it becomes easier”.

    Are there any ‘big changes’ about to happen? I went to legal presentation recently and it was suggested that the next big to happen in relation to bullying is workplace culture.

    I think what executives, managers and even workers have to understand about workplace culture, due diligence and the new work health and safety legislation that what is happening or isn’t happening now might just be used in litigation commenced after the 1 January 2012.

    It has been stated at a number of Conferences that time is running out, and that organisations should have completed their audits to determine whether or not there are any exposures. Of course, there may be a few who claim they haven’t been told. This of course was the theme of a paper at the recent Qld Safety Conference. There has been considerable information generated about the harmonisation processes and what is required to be done.

    Even as late as last week, I spoke to people who said they had heard nothing about the harmonisation. Perhaps the systems or processes of communication and consultation are not working as well as they should, or they may be some other reason for them not knowing.

    Between now and 31 December 2011, I would like to think that organisations review current workplace bullying and harassment policies in terms of the new legislation, identify any gaps, develop control measures, and then ensure that all workers at all levels receive appropriate training (not just an email saying these changes have been made). I would also go out on a limb and say that some organisations might even consider getting an outsider to come in shake the tree a little bit in relation to the legal exposure. I say this because I think what whilst internal presenters can do an excellent job, sometimes the message is ‘heard’ when it is delivered by an outsider.

    As for the manager who didn’t want to deal with the issue – they lacked the skills to deal with conflict, they did not to give more senior managers bad news or any suggestion that they could not manage their workplace, and they did not believe that it was their job to deal with workplace bullying.

    I hope the breakfast in WA today was a great success.

  10. Editor says:

    We at Safety Concepts always welcome input to our site and we love to hear your comments about the articles we feature. As far as social sites go, you can find us on facebook.

  11. Rhoda says:

    A friend recommended me to this resource. Thank you for the resources.

Leave a Reply




If you want a picture to show with your comment, go get a Gravatar.

*

Wordpress SEO Plugin by SEOPressor