How New Anti Bullying Laws Affect Your Business - Part 1

Posted on 08 October 2013

In this first of a two (2) part blog on the new anti bullying legislation that will commence on 1 January 2014 we focus on the Draft Code of Practice released by Safe Work Australia which provides direction as to the steps persons conducting a business or undertaking (PCBU) must take to ensure they comply with their obligations under the Work Health and Safety Act 2012.

The new anti bullying laws set out in the Fair Work Act which are due to commence on 1 January 2013 lean heavily of definitions and concepts from model the Work Health and Safety Act. Accordingly, it is useful to understand how bullying is addressed in the Work Health and Safety Act 2012 (WHS).

Safe Work Australia releases bullying Code of Practice

On 3 June 2013, to support the model Work Health and Safety Act, Safe Work Australia (SWA) released the Draft Code of Practice for Preventing and Responding to Workplace Bullying for public comment. The Draft Code of Practice is accompanied by a Workers Guide to managing workplace bullying.

Work Health and Safety laws

Under section 19 of the WHS employers are required to provide employees with a safe and healthy workplace. As workplace bullying is considered a psychological hazard under the WHS Act, Safe Work Australia decided to draft a Code of Practice to provide guidance for persons conducting a business or undertaking and managers on how to prevent workplace bullying and how to respond if it does occur.

Definition of bullying

Under the Code of Practice, workplace bullying is defined as "repeated and unreasonable behaviour directed towards a worker or a group of workers that creates a risk to health and safety". Examples of behaviour will include the following:

  • abusive, insulting or offensive language or comments
  • unjustified criticism or complaints
  • continuously and deliberately excluding someone from workplace activities
  • withholding information that is vital for effective work performance
  • setting unreasonable timelines or constantly changing deadlines
  • setting tasks that are unreasonably below or beyond a person’s skill level
  • denying access to information, supervision, consultation or resources such that it has a detriment to the worker
  • spreading misinformation or malicious rumours
  • changing work arrangements, such as rosters and leave, to deliberately inconvenience a particular worker or workers
  • excessive scrutiny at work.

Minimising the risks of bullying

The Code of Practice provides that the primary duty of a ‘person conducting a business or undertaking’ includes ensuring, so far as is reasonably practicable, that risks to the physical and psychological health of workers arising from the work are managed. The risks of workplace bullying can be eliminated or minimised by creating a work environment where everyone treats each other with dignity and respect. It is best dealt with by taking a preventative approach which includes the following steps:

  • early identification of unreasonable behaviour and situations likely to increase the risk of bullying (this will include consultation with workers and other duty holders);
  • implementing control measures to prevent the risks and respond to workplace bullying, and
  • monitoring and reviewing the effectiveness of the control measures.

Acting quickly to curtail bullying

Once proper processes and procedures have been put into place it is important for a person conducting a business or undertaking to respond as early as possible as soon as a supervisor, manager or business owner becomes aware there is a problem. The draft Code of Practice offers some principles to guide business owners through the process of handling reports of bullying. The principles include the following:

  • Acting promptly;
  • Treating matters seriously;
  • Maintaining confidentiality;
  • Ensuring procedural fairness;
  • Impartiality;
  • Supporting all parties;
  • Do not victimise a complainant;
  • Communicate process and outcomes; and
  • Keep adequate records.

A Consultation Regulation Impact Statement on the model Code will also be released for comment once it is approved by the Office of Best Practice Regulation. Submissions on the draft Code of Practice closed on Monday 15 July 2013.

Conclusion

It is extremely important for persons conducting a business or undertaking (PCBU) to understand how Safe Work Australia's Code of Practice as to Workplace Bullying will be implemented as it provides a framework to educate employers and employees about inappropriate behaviours that are categorised as bullying and harassment which, in turn, will assist in eradicating the prevalence of bullying in the workplace and improve business productivity.

PCBU's need to be fully aware of their obligations under the Code as once it is published it can and will be used by WorkCover NSW in Work Health and Safety prosecutions to determine the level of knowledge the PCBU had of the risks associated with workplace bullying the and what steps the PCBU had taken to minimise those risks. It appears highly unlikely that WorkCover NSW will look favourably on PCBU's who fail to monitor workplace bullying and take into consideration the recommendations set out in the Code.

We recommend all PCBU's take time to review the Code to determine what steps, if any, your PCBU will need to take to comply with the Code. If you need any further information on workplace bullying please contact us.
 

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