Draft Bullying COP Comments

Individual/Organisational name: Michael Costello

Michael Costello

Draft Bullying COP – Comments

Is workplace bullying just a work health and safety issue?
I would suggest that the fundamental issue is the right of people at work to be treated with dignity and respect. Workplace bullying is an infringement of this right. Itis a whs issue because such behaviour has health and safety consequences. It can have health and safety consequences not only for the person(s) being bullied but for others who witness the bullying because such behaviour affronts their sense of decency that all should be afforded dignity and respect at work and that they may be next.
I think the document should be a more positive document which is predicated on the principle of dignity and respect at work. The problem with the way the document is framed is illustrated by the example of the workplace bullying policy in Appendix A. It is a totally reactive document which places the onus on workers to report bullying with no mention of what management will do to promote and ensure positive workplace relations. All management will do is implement is implement its procedures. Until a bullying incident is reported it will sit on its hands. A positive overarching policy such as a Dignity and Respect Policy which encompasses bullying would be a more appropriate approach. I will deal with the policy example in more detail later.
Page 8 “Workplace Conflict”
The paragraph also illustrates the problems with a negative approach. It can, and will, be read to say that if a person cannot demonstrate an adverse health effect then it is not bullying but merely “low level conflict”. This will be seen to place the onus on the victim to prove an adverse health effect when making a bullying complaint. The principle should be that when there are differences or disagreements in the workplace there is an obligation on all parties to treat each other with dignity and respect and a failure to do so should not be tolerated.
Page 8.“1.3 Who has duties in relation to workplace bullying?”
It would be useful to spell out who “workers and other persons” can include in the paragraph on pcbus duties. PCBUs need reminding that their duties extend beyond their employees but include contractors, labour hire workers etc. It is important the pcbus understand this in situations where there are shared duties.
There needs to some indication of situations where “others in the workplace” can be subject to bullying. For example, recipients of home based care can often be intimidated into not reporting substandard care. The culture in the industry encourages an attitude that in providing care they are doing the recipients a favour and to complain may lead to the care being withdrawn. Moreover, the agencies that provide the care are quick to point out the whs obligations of the recipient but not the carer. I have had first hand experience of this through helping a friend with a severe disability.
Page 9. “Consulting, cooperating and coordinating activities with other duty holder”
This section is quite unhelpful. All it does is, after quoting Section 46 is paraphrasing it!
It should give examples where the duty to prevent workplace bullying are shared and not just refer readers off to the Consultation Code for this is an area where workers are most vulnerable to bullying. Many workers now work as subcontractors or labour hire workers and their engagement can be easily terminated if they complain about their treatment. The Code needs to spell out that both pcbus – the host firm who engages the contractor or labour hire firm and the contractor or labour hire firm who supplies the labour- have the same duty to ensure that the workers are afforded dignity and respect and that bullying is a breach of their duty of care.
In meeting that duty the pcbus need to consult Section 5 of the Consultation Code.
Pages 11 -14 – 2. “Preventing Workplace Bullying “
I would recast this whole section.
The emphasis should be positive and focus on dignity and respect. Therefore the section should start with how to develop and maintain dignity and respect. To do this 2.1 should be “Create a workplace where everyone is treated with dignity and respect” but without the accompanying text.
This should be followed by the current paragraphs “(c) Develop productive and respectful workplace relations”and “(b) Design safe systems of work “ in that order with the accompanying texts except that in both cases the word “control” at the start of each section and replace it with “implement”. I would also change the first dot point in (b) to the general point that “systems of work are designed to eliminate or minimise safety risks.”I would also change “some” in the third dot point to “a”.
All of the above should be incorporated into a statement of commitment or policy on Dignity and Respect which includes a statement that bullying in the workplace will be considered a serious breach of this policy and will be dealt with under the organisation’s Bullying Policy and Procedures.
I would then have a section on Addressing Workplace Bullying
This should start with a general statement currently in the 4 dot points under a) creating a workplace where everyone is treated with dignity and respect. The only change I would make is to insert “identify potential risk factors” between to and respond in the second dot point. I am uncomfortable with the term “hazard” in relation to bullying. For example there are so many issues mentioned in 2.1 that it is impossible to know what the “hazard” actually is!
This should be followed by the current sections a)Implementing a workplace bullying policyand then by b) Implementing hazard reporting and response procedures but retitling it Identifying risk factors and responding to reports of bullying procedures. I would delete the word hazard from any reference in this section to hazard reporting. I don’t know what it means. What is required is a reporting procedure which will enable workers to report when they consider that they are being bullied or are likely to be bullied. One thing the code does not encourage is the reporting of bullying by others in the workplace who are not the subject of the bullying. The code should encourage this as the people most likely to be bullied are those least likely to report. If this is not mentioned in the code fellow workers might feel that they are not allowed to report such occurrences.

These sections should be preceded by the current section 2.1 but this should be retitled Identifying the potential for workplace bullying.

I have no problems with the rest of Section 2.
In Section 3 Responding to Workplace Bullying the dot points concerning with whom a person can raise a workplace bullying issue (not hazard) should also include the union delegate or other union official. There may not be an HSR in the workplace and a person may be afraid to raise an issue on their own with management. That’s the nature of bullying issues. For many workers with poor management, no HSRs and no union presence, they have to put up with bullying or leave.
I’m not sure what constitutes the resolution of a bullying issue. Does the resolution only involve the particulars of any specific bullying case? If the bullying complaint is symptomatic of failures in the management of the workplace generally should the resolution of the complaint address these issues or only deal with the specifics of the case? What if the complaint is not upheld should the resolution agreement address this impact on the complainant? I could go on. The resolution at the very least should address:
The specifics of the complaint
The implications for workplace management
The welfare of the parties involved.
3.5What if the report of bullying is not resolved at the workplace?
I think that workplaces need more information on how the inspector will respond to a request for assistance other than “an inspector may exercise any of the powers under the WHS Act, including providing advice ,investigating contraventions or issuing improvement notices. ( I notice that a prohibition notice is not mentioned. I can think of situations in which there are serious risks to a person’s health and safety if the bullying behaviour is not ceased immediately). This reads as if bullying is on a par with housekeeping or manual handling issues. It will not encourage workers to take the further if they fail to get redress in the workplace.
Have the jurisdictions discussed how they will handle bullying complaints? If they haven’t I suggest the 3 dot points immediately above would be a good starting point
Section 4 Investigations
Is this section for real? It is recommended that an investigation should take place for bullying allegations of a serious nature such as those:
Covering a long period of time
Involving multiple workers
Where the allegations or alleged behaviours are in dispute
Where other issue resolution processes have not been able to resolve the dispute.
What magical powers will the investigator have to unearth facts that have not already been addressed concerning the long period of time and the multiple workers involved in the complaint that have not already been covered in the failed process to resolve the issue?
For a complaint to get to this situation there is an obvious break down of trust between the workers and management. Do you really think they will trust an “independent’ investigator who is being paid by management, particularly if the investigation does not uphold the complaint?
I am astounded by the following sentences in paragraph 2 of 4.3
“An investigation may find that a report of bullying is not substantiated and no further action can be taken. If the allegation cannot be substantiated this does not mean that bullying did not occur “. In response to the first sentence I ask: Says who? In response to the second sentence I would ask how can a bullying complaint be not substantiated when it is established that bullying occurred?
In reading the dot points at the bottom of 4.3 I suspect this section was written by a lawyer – determine guilt and dish out punishment. There is no appreciation that in a situation that warrants an external investigation there are serious issues of trust and management that need to be addressed.
If I were aggrieved workers I would prefer to have serious complaints that haven’t been resolved in the workplace to have them resolved by the Fair Work Commission under sections789FC –FH. It probably won’t resolve the trust and management issues but it will determine guilt, if any, and punishment. Will these provisions be referred to and explained in the final Code?
Appendix A –Example of Workplace Bullying Policy
I suggest you carefully read this policy from the point of view of a worker at ABC Car Repairs. The following points will become obvious:
There is no indication that the policy has been developed in consultation with the workers.
It suggests that dealing with workplace bullying is the responsibility of workers The policy encourages workers to take action to manage workplace bullying and to report workplace bullying in line with the procedure“ The implication is that management only has a reactive role- to respond to complaints
“If this policy is not adhered to, it may result in disciplinary action...?” Does this mean that if I don’t report bullying I can be disciplined?
I would be put off with the ABC Car Repairs. Surely it the friendlier “We” or even the owner’s or manager’s name should be used
Apart from addressing these issues the policy needs to be prefaced by a commitment to treat everyone in the workplace with dignity and respect. Consideration should also be given to a Dignity and Respect Policy as mentioned earlier.