In brief - Draft Code of Practice suggests measures to control bullying and risk
Employers should develop workplace bullying policies, provide information and training, manage risks in behaviour, have an effective complaints resolution procedure and encourage reporting of bullying incidents.
Workplace bullying an expensive problem in Australia
Bullying in the workplace is a significant problem in Australia, with the Productivity Commission suggesting that workplace bullying costs Australians between six billion and 36 billion dollars per annum.
As part of the harmonisation of the occupational health and safety legislation undertaken in Australia early this year, Safe Work Australia has released a draft Code of Practice, Preventing and Responding to Workplace Bullying, which is expected to be implemented in late 2012.
Legal effect of codes of practice
To have legal effect in a state or territory in Australia, a code of practice must be approved as a code of practice in that jurisdiction. Codes of practice are practical guides to achieving the standards of health, safety and welfare required under the Work Health and Safety Act (WHS Act).
A code of practice does not have legislative force, however it can be used as evidence when determining whether there has been a breach of the WHS Act and a WHS inspector may refer to a code of practice when issuing a recommendation or prohibition notice.
The draft Code of Practice defines what constitutes workplace bullying, identifies the sources of legal obligation and provides guidance on how to prevent and address bullying in the workplace. The Code of Practice is intended to provide practical guidance for duty holders to achieve standards of health, safety and welfare required in the legislation.
Bullying is behaviour which is victimising, humiliating, undermining or threatening
The draft Code of Practice provides clarification on the types of behaviour which constitute bullying in the workplace. Bullying is defined as repeated unreasonable behaviour directed towards a worker or group of workers that may create a risk to health or safety. Behaviour considered unreasonable includes actions that a reasonable person having regard to the circumstances would see as victimising, humiliating, undermining or threatening.
In addition, it is noted that bullying can be direct or indirect an can occur in person, electronically or through telephone or mobile communication. Examples of direct bullying include abusive, insulting or offensive language or behaviour or language that frightens, humiliates, belittles or degrades a person, which may also include criticism that is delivered by yelling and screaming.
Person conducting the business has primary responsibility for preventing bullying
The Code of Practice further emphasises that every person in the workplace has a legal obligation to prevent and respond to workplace bullying. Although the person conducting the business has the primary responsibility and duty of care with respect to the prevention of workplace bullying, workers in a place of employment also have responsibilities:
- to take reasonable care of their own health and safety
- to take reasonable care to ensure that their own acts or omissions do not adversely affect the health and safety of others
- to comply with any reasonable instruction provided by the person conducting the business
Measures to prevent bullying in the workplace
The Code of Practice provides that the best way to control bullying and risk is to eliminate the causative factors. However if that is not reasonably practicable, it is suggested that measures be implemented to minimise the risk including:
- managing risks in behaviour, eg creating a healthy corporate culture and ensuring constructive leadership style is adopted
- developing a workplace bullying policy
- developing an effective complaints resolution procedure
- providing information and training on workplace bullying to workers
- encouraging reporting of workplace bullying incidents
Implement a workplace bullying policy and train your staff
It is recommended that your organisation implement a workplace bullying policy and provide training to all workers.
It is further recommended that the management team is trained in how to respond to incidents of workplace bullying when they occur in the workplace.
To learn more about how the new WHS legislation will impact your organisation, attend the next Workplace Relations seminar to be held in our Sydney offices. Please contact firstname.lastname@example.org for more information.
This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2019.