The Work Health and Safety Act 2011 (Qld) (the Qld Act) commenced on 1 January 2012, implementing the national Model Work Health and Safety Act (Model Act) released by Safe Work Australia in November 2010. Legislation implementing the Model Act also commenced on 1 January 2012 in New South Wales , the Australian Capital Territory , the Northern Territory
Codes of Practice provide practical guidelines to help duty holders meet their obligations and ‘first stage’ approved Codes of Practice have been adopted by Queensland as part of the national harmonisation process.
Among the range of ‘second stage’ draft Codes of Practice released for public consultation (now closed) in September 2011 is the Preventing and Responding to Workplace Bullying Draft Code of Practice September 2011 (draft code).
WHSQ’s (Workplace Health and Safety Queensland’s) Prevention of Workplace Harassment Code of Practice 2004, amended to ensure consistency with the Qld Act, is preserved under s 284 of that Act. The preserved code commenced on 1 January 2012 and appears similar in effect to the draft code.
The Qld Act places a primary duty on a ‘person conducting a business or undertaking’ (PCBU) (defined to encompass employers and, also, a broad category of people such as principal contractors, governments, persons with control of a workplace) to protect workers from harm to their health, safety and welfare. ‘Health’ is defined as physical and psychological health (e.g. covering fatigue and bullying). The duty requires elimination or, at least, minimisation of risks as far as is reasonably practicable.
A duty is also imposed on officers of PCBUs (e.g. directors) to exercise ‘due diligence’ to ensure the business has the resources and processes to deal with bullying. Workers (also broadly defined to cover many work relationships, even volunteers) have a duty not to bully others and to comply with policies and instructions.
The draft code defines workplace bullying as ‘repeated, unreasonable behaviour [i.e. behaviour that a reasonable person, having regard for the circumstances, would see as victimising, humiliating, undermining or threatening] directed towards a worker or a group of workers, that creates a risk to health and safety’. ‘“Repeated behaviour” refers to the persistent nature of the behaviour and can refer to a range of behaviours over time’.
Bullying can be direct or indirect; it can even be unintentional.
Reasonable management action carried out in a fair way (e.g. constructively pointing out unsatisfactory work performance) does not constitute workplace bullying.
While a single incident of bad behaviour does not, according to the above definition, constitute bullying, it may escalate into bullying and should not be ignored.
Possible reactions to bullying include distress, illness, lessened work performance, lowered self esteem and depression. Workplace impacts include increased absenteeism, lower productivity, high staff turnover and costly compensation claims.
Bullying is best handled by early prevention measures before it becomes an issue. This can be done through a risk management process and should involve workers and their health and safety representatives. The steps identified in the draft code (for which further guidance is provided in the Code of Practice: How to Manage Work Health and Safety Risks) are:
- identifying bullying risk factors that may suggest a developing problem (e.g., is a worker taking more time off?)
- assessing the risks to help determine the existence and severity of any bullying, what is needed to manage the risk and how urgently;
- controlling the risks through measures such as implementing a workplace bullying policy, informing workers about it and implementing a resolution process;
- regularly monitoring and reviewing control measures.
Some concerns were raised in public submissions about the definition of ‘workplace bullying’ under the draft code. Business SA argued it was ‘far too broad’ and did not mention what to do about vexatious claims. On the other hand, the Community and Public Sector Union (CPSU) opposed the need for bullying requiring repetition, arguing that regardless of the frequency of bullying behaviour, it is necessary to consider the health effects of even a single incident on the worker. The CPSU also objected to the exception under the draft code for ‘reasonable management action’ whereas the Australian Federation of Employers and Industries (AFEI) disagreed with ‘systems of work’ being a risk factor because changes and associated work demands are inevitable.
Other submissions raised possible resourcing implications for small business. For example, the AFEI submitted that the code’s requirements ‘are beyond the capacity of most Australian businesses which are small and simply do not have the relevant resources’.
Others, such as the Association of Professional Engineers, Scientists & Managers, Australia, submitted that ‘the cost benefits associated with preventing workplace bullying far outweigh any potential monetary cost associated with’ implementing policies and procedures.
In response to the suicide of a young worker in 2006 who had been repeatedly bullied by co-workers, the Victorian Government criminalised workplace bullying under s 21A of the Crimes Act 1958 (Vic) by extending the definition of ‘stalking’ to also include behaviours that typify workplace bullying (dubbed ‘Brodie’s law’ after the victim). It is directed at employees engaging in the bullying rather than employers (at whom WHS laws are primarily directed).
Key Documents
SafeWork Australia
Workplace Health and Safety Queensland (WHSQ) Queensland's new work health and safety laws
Hon Cameron Dick MP, Minister for Education and Industrial Relations, ‘A new era in work health and safety’, Ministerial Media Statement, 1 January 2012
A Model Code of Practice on workplace bullying, Clayton Utz Insights, 24 November 2011
Victoria's new workplace bullying laws - what do they change?, Clayton Utz, 7 April 2011
Nicolee Dixon
General Distribution Research Team, Research and Information Service
