A code of practice to address the issue of bullying in the workplace is being drafted by Safe Work Australia. The code will include a section on violence in the workplace.
The code will form part of the model Work Health and Safety (WHS) laws and will be admissible in court proceedings under the WHS Act and WHS Regulations.
This is a significant step in the fight to eradicate the impact of workplace bullying that affects victims and their families, as well as the Australian economy. In 2010 the Productivity Commission reported that the cost to the Australian economy of bullying and harassment ranged from “$6 billion to $36 billion a year.”
Maurice Blackman’s Josh Bornstein has called on the federal government to immediately address the “impotence of the law in dealing with bullying” by introducing national legislation to make workplace bullying illegal and give victims quicker access to the legal system. “The existing legal options for victims of workplace bullying are too slow, impractical and reactive”, he says.
Federal Workplace Relations Minister Chris Evans in responding to a petition lodged with the government’s Standing Committee on Petitions, conceded that the issue is “not specifically addressed” but that the Australian Government considers “workplace bullying and a workplace culture that allows harassment and bullying to occur” as unacceptable.
Under Australian law victims of workplace bullying have recourse to occupational health and safety laws by virtue of the duty imposed on employers to provide employees with a safe workplace. However, this does not provide “practical means for employees to expose their work environment to external scrutiny in a court or tribunal”, said Mr Bornstein. A prosecution of an employer may follow from a finding that a breach of occupational health and safety laws has occurred.
As was the case in the prosecution which followed the suicide of Brodie Panlock, whereby convictions and fines were handed down to the employer and perpetrators — nearly four years after her death. Shortly after the prosecution Victoria introduced what has been referred to as “Brodie’s Law” which saw its criminal stalking laws expanded. According to Mr Bornstein “Although this initiative is perhaps symbolically important, I can safely predict it will have no impact on at least 95 per cent of genuine cases.”
Mr Bornstein indicated that “the usual means of redress for employees suffering workplace bullying is workers’ compensation”, whereby the victims, who in some cases are too damaged to return to work, face years of workers compensation or social security payments.
As the law currently stands: “workplace bullying is not illegal”, said Mr Bornstein.
Contact Carolyn Hagedoorn for more information on business law.