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Content WindowStanding Committee on Education and Employment - 12/07/2012 - Workplace bullying
BUCHANAN, Mr Neale James, Director, Operations, Workplace Standards Tasmania
BANKS, Ms Robin, Anti-Discrimination Commissioner, Office of the Anti-Discrimination Commissioner, Tasmania
CHAIR: Welcome. Although the committee does not require you to give evidence under oath, I should advise you that this hearing is a legal proceeding of the parliament and therefore has the same standing as proceedings of the respective houses. I ask you both to make an opening statement, and then we can proceed to questions.
Mr Buchanan : I do not have a great deal to say. I bring to you the relatively narrow perspective of the regulator of workplace health and safety in Tasmania. Workplace Standards is the OH&S regulator. We employ the inspectors, and they do investigate bullying complaints.
Looking at your terms of reference, there are a couple of issues I can comment on. They ask about the prevalence of workplace bullying. Traditionally in workplace health and safety we have relied very heavily on workers compensation statistics. It is our view that they are not a good indicator in this area. We use that data, but we believe, from anecdotal evidence, that many workplace bullying issues do not go through the claim statistics. I can put a personal perspective on that. In a prior working life I was in an organisation where I believe there was strong bullying going on. A number of the staff, to my knowledge, were consulting medical practitioners and were under treatment. Nobody lodged a workers compensation claim; they just moved on. So for all intents and purposes there was no official bullying in that workplace—but there undoubtedly was bullying there. So I think the statistics are unreliable indicators.
We are seeing a growth in complaints in this area. Interestingly, in this current calendar year we have seen an upward trend. The numbers have doubled, and that seems sustained; it does not seem to be a statistical aberration. I am not quite sure why that is, other than because of enhanced publicity and awareness about the issue. I got our research person to run some stats on our complaints. It is interesting to look at where they are coming from. The highest figure is in hospitality, which is at 17 per cent per cent. That is followed by retail, at 13.8 per cent, and health and community services, at 12.3 per cent. I was here for the earlier evidence. We are not seeing it from government—government makes up 1½ per cent of our complaints. That is probably reflective of the fact that there are grievance procedures. Perhaps, rightly or wrongly, we are not seen as an avenue to take for a bullying complaint in that sector.
From the point of view of the adequacy of the regulatory framework, I want to make a couple of points. You have referred to the code of practice that is being developed. It will not be the be all and end all. I heard Kevin speak this morning and I do agree with him to a point. But I think it will be an important step forward if that code of practice has some teeth in it—if it is not couched in vague and wishy-washy terms. I certainly hold out hope that that will be an important step forward. We adopt the new laws from 1 January 2013, as you heard this morning. One area that I am very optimistic about helping in the fight against bullying—and I am not sure if it has come up in your other hearings—is the due diligence requirements in the act for officers.
CHAIR: It has not come up; could you expand on that?
Mr Buchanan : Certainly one of the most important areas, and I think the most important change in Tasmania, is the requirement on officers of organisations—the decision makers at director level, CEOs, those who influence the operation across the entirety of the business—to have the duty of due diligence. They have to have reporting mechanisms in place, they have to do all those things that we would commonly understand as due diligence and that they would undertake as directors now in financial areas that they are well familiar with, and it is now extended to health and safety. I think there is a really strong potential here to focus not so much on the traditional physical health and safety issues but that due diligence framework should extend to these areas of mental health and wellbeing.
It is more difficult, and you have heard that, I am sure, not just this morning but in other areas. But I think developing, through Safe Work Australia, some common sets of indicators would be a really positive step forward: turnover statistics, climate surveys, exit interviews—to me they would all be elements of due diligence for an officer to have those sorts of mechanisms in place.
If I go back to my personal experience that I alluded to earlier, I think if the board of that organisation was receiving the sort of data that it should have been receiving on staff turnover, it should then have asked the questions. It is not a magic bullet, let us be clear. But one thing I have noticed with the new laws in this area of due diligence is that there is an enormous amount of interest in Tasmanian board rooms. The level of penalties is of course greatly increased from what we are used to, and that is one factor. But I get an enormous amount of interest and requests to talk to directors about this issue. And I am starting to push this issue.
I will respond to the one point I heard a couple of times about the education and training of my inspectors. By and large I would agree. The average inspector is not trained to deal with workplace bullying matters, and that is a very deliberate decision on my part. I have been in this job for a bit over three years. We would try to treat it as a general workplace health and safety issue. My view is that it is a specialist health and safety issue, and there are only two inspectors to whom I refer these matters for investigation—one who is very strong in the overall subject matter and the other probably not as strong but very strong in investigation skills. It is a very deliberate decision that we try to keep this as a specialised area. In that sense it is no different from forestry, where it is a specialised type of workplace, and we have specialist forestry inspectors as an example. They are not focused wholly and solely on workplace bullying, but where I have matters that I put forward to investigate, they are the people I go to. So they do have the skills.
CHAIR: We will move to Robin and then we can go to questions.
Ms Banks : Thank you. I and my office take an interest in this because it comes up for us regularly in our training work, in our community education work and also through our inquiry line. People often use the language of bullying when they contact my office or they speak to me or my staff, and that raises the first question that we all have to grapple with. That is, what I mean when I say 'bullying' is going to be different from what somebody else means. So I think that developing greater clarity around what may or may not constitute bullying is going to be a constant refrain.
The kinds of conduct we deal with and hear about as complaints of bullying certainly impair people's human rights and some of it impairs their equality rights, which is where it comes within my jurisdiction. If it is discriminatory bullying then it can be dealt with under my legislation. Beyond that, we have really no scope to deal with it, and that is one of the gaps in the regulatory framework. I think it is worth observing the complementarity of the role my office has in terms of assisting people through lodging a complaint and seeking to resolve it through an alternative dispute resolution process and the role of Workplace Standards as an investigator and prosecutor. I think they are quite complementary. In no other area where discrimination arises is there any sort of prosecutorial function. Bullying is one of the areas where there is an overlap which I think is useful and we have started to talk as officers about how we might work together to refer and deal with matters when they fit in both of our jurisdictions.
The act in Tasmania, as it stands, covers some bullying but not all. As I said, it covers that bullying that you can link to an attribute protected under the act, as a form of direct discrimination, because it is clearly a form of less favourable treatment if a person is being bullied. Also, the act in Tasmania expressly prohibits offensive conduct, conduct that humiliates, ridicules, intimidates or insults a person, but at the moment that is limited to only seven of the attributes related to gender. There is a proposal to extend it to all of the 20 attributes protected, which would certainly extend the express coverage of lots of the matters that we deal with under the rubric of bullying, but will still leave that which is simply really bad behaviour.
CHAIR: And it is hard to link someone—
Ms Banks : For no particular reason other than—
CHAIR: Well, for a reason. They might be good at their job or a whole range of other things.
Ms Banks : Yes. One of the observations that I think is also worth making is that I suspect that there is a big gap in our complaint data and probably in the complaint data for workplace standards around younger people in the work environment. We get very few complaints under any of the prohibitions under the act from people between the ages of 18 and 30. That is quite common across complaints bodies; young people will tend not to complain. When you are talking about workplace situations, the capacity to get and retain work and wanting to stay in a work environment probably are a further disincentive on top of the fact that young people do not tend to use formal complaints bodies across the board. I suspect there is a group who are probably highly vulnerable to bullying who are less likely to be represented in data anywhere there are complaints.
That said, employment complaints are traditionally the highest area of complaints that my office receives. It looks as if it has changed this year for the first time, but it is pretty common across all the jurisdictions in Australia. I am sure you have heard that but discrimination complaints in employment are pretty much consistently where we get the complaints from across all types of entities. Last financial year—not the one just gone but the one before that—we saw quite a significant rise in complaints against government entities in Tasmania. It has dropped back a little bit this year, and that is the full spectrum. I do not think I could exclude government from there being an issue any more than I could easily include it.
The other thing is that the act provides what some people would call a vicarious liability provision, but it is broader than that. Employers or entities are held to be responsible for breaches of the act by employees, officers, members and others. It is not just employment; it could be in club membership or whatever else, if there is a breach of the act by one of those people and the employer has not taken appropriate steps to ensure people are aware of their obligations under the act. There is an active obligation to ensure that staff members et cetera do understand discrimination and prohibited conduct in Tasmania and effectively a deeming provision to make an entity liable. That is a pretty significant issue in the area of bullying because it is most likely to be an employee or an officer of an organisation and unless the organisation is really addressing it proactively then they are likely to be part of a complaint. That was really all I wanted to say.
CHAIR: That is great. We will go to some questions. Neale, I am interested in the process of your investigations or what the investigators do, because what we are hearing a lot from people is that, with getting in really early if there is a complaint of bullying and if people do not feel it has been resolved at the workplace, there is still the ability to resolve it. People are saying that may need to be an independent authority. There was a bit of that talked about this morning but was also in our other hearing were different incarnations of that. People are talking about some examples of early equal opportunity in Victoria when the commission was first brought in and a phone call could be made just to give some guidance—having somewhere to go that can give independent advice on if it is bullying or if it is not but also step in and resolve it relatively quickly.
My sense is that investigators have to probably not get in and get a gut feeling and try and resolve it; they are looking at the whole situation. I would like to know whether or not you see the role that investigators play as getting in there and trying to investigate but also resolve some of the issues earlier rather than later before it does do significant psychological damage to people—people who get in and say to the employer, 'Look, you might not think there is a bullying issue going on here; we cannot say it is definitively but we think perhaps you need to get these people to sit down or do this really quickly before it escalates after a long investigative process where people are trying to work out who did what to who'. That seems to be where a lot of people are talking about now in terms of what body and how it should be done. I would be interested from your perspective because your investigators would probably be one of the early groups on the ground to look into these situations.
Mr Buchanan : I think sometimes we are not early, and I think that is part of the problem. We get these things after the damage has been done. So we are really investigating from a point of view of: has there been a breach of duty of care and, if so, what should be the appropriate enforcement response? We get some good results, and there is a such a variety of issues. I will give you an anecdote from this week. The more complex ones I deal with myself, and on Monday I was dealing with a major employer. There were fairly vague and unsubstantiated complaints that I would say amounted to a toxic work environment but there was nothing specific that I could direct an inspector to go and investigate from a point of view of, 'Let's see if we are going to prosecute someone'. I met with the CEO and HR director. We talked through the issues and what had been reported to me. We agreed some strategies, they responded very positively and I was very happy with the outcome of that meeting. Now they have to put some actions in place, and it is really their human resources management strategy that they have to get right. I think that is a good example. I could give umpteen other examples where we are called in and, more often than not, it is at the tail end when someone has sustained serious mental harm as a result. It is then very difficult because we are looking at this matter as to whether there are grounds. We have a criminal standard of prosecution that we have to meet, and it is very difficult.
CHAIR: Would employers ever call you in to ask for some help?
Mr Buchanan : I do not think they would call us in.
CHAIR: What we have been hearing is that in a lot of these situations management do not know what to do; they do not know how to do it. There is a range of things. It seems to me that educative nipping in the bud could really help and it would help with someone being relatively independent. So most of your calls for investigations happen from targets or people who feel like they are being bullied. Is that right?
Mr Buchanan : Yes, that is right. It seems to be individuals. That may be indicative of a wider problem, as it was in that example. Some of them are very simple. For example, late yesterday we looked at what I would call a classic bullying. It was a supervisor harassing with extremely, overtly, aggressive behaviour towards an employee. I gave it to my investigator this morning. Before I left for this hearing he told me that he had made an appointment and that the complainant will be talking to us tomorrow. I think we can get a good outcome on that. We can get in early. That is one where I think we will get in early, but there has been a fair bit of damage taken, and a lot will depend on the attitude of the employer. We do not have the role of mediating, and I would agree that it is not a skill set that exists within our organisation. If it was identified through your inquiry that that is the missing link then I think that really is a job for a specialist.
CHAIR: Robin, out of interest, we heard this morning that you have more attributes than a lot of other jurisdictions. Nevertheless, from some of the personal impact statements, the targets seem to have become targets as a result of perhaps coming in and doing a little bit extra, and other people in that organisation did not like that. There is not an attribute that you can really put it down to except that for some reason the workplace culture allowed this situation to happen and this person was then bullied. In that situation, would you work with WorkSafe? How practically would that work?
Ms Banks : That would tend to come to us, either through a phone inquiry or a face-to-face inquiry—perhaps somebody is at a training session and gets asked for a quiet moment. That conversation would seek to understand whether or not there was an attribute involved, so it would be seeking information. If there was not, we would suggest to them that they contact Workplace Standards and potentially the union and others to get the support and assistance they need to deal with it. In an event of a formal complaint where there seemed to be a quite systemic problem in the workplace, then I would certainly raise it with Workplace Standards as an issue that they might need to investigate. So we can provide that independent, first point of information; we cannot give advice, but we can certainly give information about the coverage of our act and about what else might be available. In the last 12 months, we have implemented an early resolution process, so that as soon as we get a complaint and it is accepted as being within the act, we seek the views of the parties about coming together for an early resolution meeting. As I say, we have only really been doing that at that early stage for a year, and we are getting them resolved at about 70 per cent which is quite high.
CHAIR: And does that involve both parties continuing to stay at the workplace?
Ms Banks : It depends. It is up to them what they agree to, but certainly some of them have resolved it with that occurring. I think that is the most difficult situation, in that it often results in people walking away—taking some sort of compensation and acknowledgement and leaving the work environment.
The other positive stuff is that we do get a lot of employer organisations coming to us for training. Our training as a matter of course includes information about the prevention of bullying and about what employers need to be working on. Many organisations come back to us not only for assistance with developing appropriate workplace policies but also for advice as to what other training might be needed. We are about to issue some guidelines on the whole spectrum of things people need to be thinking about including their obligations under Workplace Standards, not just under antidiscrimination law.
CHAIR: Do you think they are coming to you because of their vicarious liability or is there something that has motivated them to come to you?
Ms Banks : I think it is a mix, but I think it is also an acknowledgement that this is a growing problem. Even if it is not already manifested in the work environment, organisations are conscious of what is going on out in the world around them and of the need to prevent that happening in their own work environment. I think there is a bit of positive action as well as a risk management strategy to avoid liability under section 104.
One of the things we have seen—and I think this is something we really need to address—is that often when we are dealing with employers and helping them with the development of policies, they see the process for a person to deal with a bullying complaint—that is, somebody who feels they have been bullied or discriminated against at work—as a staged and escalating process of resolution; and that a person should start with an informal, internal process and only come to me or to Workplace Standards right at the end. We would say: 'No, there are situations where the most appropriate thing for the person to do is to go externally immediately.' That is a matter for them and what they are comfortable doing. There should never be a requirement—either internally or for us—that they make an internal complaint. There are a whole lot of reasons that none of us can necessarily be privy to as to why a person makes that choice as to whether they seek to try and address it directly with the person who they say is bullying them, or they go to somebody like the HR manager or the manager of the organisation, or they come to us. That is certainly a message that we are trying to strengthen in our work: 'No, it is not a continuum where you have to start at one end and get to the other end; it is actually a set of choices.' People need to be able to choose any of those and not be punished for it. We certainly see some quite negative comments about, if not consequences of, people coming straight to us.
CHAIR: However, that can be quite difficult. If they go straight to Workplace Standards and then it is a long investigative process, that does not resolve it straight away for them, which is difficult. But if they get a bit of advice—
Ms Banks : The other thing that we do is to train what we call workplace support or contact officers, who are people in the work environment who are the go-to people. They are taught about all the options that might be available and how to support a person by giving them that information; not to become an advocate for the person but to be a source of internal information.
CHAIR: And would you include bullying in that if it did not have a connection to the attributes?
Ms Banks : Certainly their role would include dealing with bullying. There is no question about that. It would be artificial to say it should only deal with those. It is a matter for the employer as to what they create in those roles, but we would certainly not suggest that they limit it to discrimination.
CHAIR: And you would give them a bit of training for that?
Ms Banks : Yes. We do give them the broader stuff. I think that has been a quite positive development. It has certainly been growing and we are now holding regular meetings with the contact officers across the state to give them support, to hear about the kinds of issues that they are facing and to see what else we can do to improve the responsiveness of employers. So it has been a really good loop for us in terms of education and training and then development.
Mr RAMSEY: Robin, I will go firstly to you. I want to come back to the current laws around discrimination in the Anti-Discrimination Act. I am wondering how difficult it is for an employee to prove discrimination. We talk about it being unless you have got something that stands you aside. Let us say, for instance, you have got red hair — and it might be a bad example and I am sorry if I have offended people with red hair. If you were the only person in the workforce with red hair you could make a case. If there were two and the other one was not being victimised, would that undermine your case? I am just wondering how tough it is.
Ms Banks : Yes, it would but I guess my role and the role of my office is not to make a determination about whether or not there has or has not been but about whether or not what is described in the complaint discloses possible discrimination. So we get in early and try and resolve it, and we are very careful to explain to the respondents, the people who are alleged to have discriminated, that we have not found that the discrimination happened but that we have found that if what the complainant said was true, and it was on the basis that they say it was, then it would be a breach of the act. If it does not get resolved in our process then it gets referred to the tribunal, which does then conduct a hearing at which the complainant has the onus to prove, on the balance of probabilities, that there was discrimination on the basis of an attribute.
Mr RAMSEY: So it is the complainant that has to prove it in that case, unlike with some other —
Ms Banks : Unlike with the Fair Work legislation where the onus has shifted under the more recent legislation. Certainly that has been the subject of some discussion amongst me and my colleagues at the other commissions, that perhaps we should be going in that direction, because it is often very hard to prove. It is particularly about the ones we see that are largely unsuccessful because it is so hard to prove.
Mr RAMSEY: But, also, if you change the law it might be difficult to disprove as well.
Ms Banks : Yes, it may be, although I would argue it is largely easier to prove that you had a valid reason for doing something than it is to prove that it was discriminatory. They are slightly different tests and it is harder. Most of the knowledge is the hands of the respondents usually. They have a greater capacity to prove that they did it for valid reasons, and if you can prove that you did something for valid reasons —
Mr RAMSEY: That is in the case where you have got bullying that is coming from a higher level of management down. But it is not always the case, is it? Sometimes it is across sectors.
Ms Banks : Yes, we certainly deal with stuff sideways, downwards and laterally—the whole lot. The area that is probably the hardest in discrimination law is race, and it is going to be interesting with the national antiracism strategy to see whether that helps people to understand discrimination on the basis of race better, because it is a notoriously difficult area for complainants to prove discrimination in, whereas with something like disability it is often more concrete and it is less attitudinal and more about concrete actions that have led to the complaint. So different attributes have different difficulties, and that is one of the fascinating things about the area. I guess if we had better regulation around workplace bullying not having to prove the connection to an attribute would be a really powerful change for many people.
Mr RAMSEY: One of the reasons for asking—and this will come to you, Neale—is that when we met with WorkCover in New South Wales—which are in fact the regulator there, not the compensation unit, and that was a bit confusing for me—they were of the view that they had sufficient current laws to deal with these issues in the workplace but they just had to be pursued and executed. That is why I come back to you, Neale, because you are actually saying that you have an insufficiency and you would like some extra ones.
Mr Buchanan : I think the new act will be a substantial step forward—and they are of course operating under the new act now, so I do put that rider on it. I think the difficulty will still be this. When complaints come to us we are looking at them to see if there has been a breach of duty of care of a workplace party, typically the employer—and under the new act there will be that wonderful word, PCBU—and it is a fairly vague concept. As we know, and I am sure you are hearing this, when you are dealing with a bullying complaint there are all sorts of issues that get interwoven with it. Was this a legitimate performance management exercise? It is very difficult to find a clear-cut, black-and-white proven beyond reasonable doubt prosecution case. They exist. We had one last year that we thought would go to court. It was close. Then the employer terminated the employment of the two perpetrators and the complainant was extremely happy with that outcome and went back to work. It was a good outcome for that person and we did not go down the path of prosecution any further.
Mr RAMSEY: We do not know though what happens to such people who are dismissed and where they pop up next in the workforce.
Mr Buchanan : That is true. That is a good point.
Ms Banks : I guess there is the difference between a prosecutorial function which deals with it as a wrong against the state, in effect, and a process like discrimination law that deals with it as a wrong against the person and seeks to remedy that wrong for them. At the moment we have got two separate processes that cover some or all but not necessarily both at the same time. That can be really hard for people because what they want is to feel safe and feel that it is resolved and feel that the harm has been acknowledged and it is not going to happen again to them. It is a bit like criminal law: people who are victims of crime have not traditionally felt that the system has really understood what they have been going through, so now we have victim services and victim support and compensation for victims. So we are getting closer in that area as well. But I do think they are complementary and we need both. What WorkCover does is prosecutorial, as I understand it, in New South Wales so to that extent, yes, they may well have enough power to prosecute but it is about this: does it really address the victims' needs at the same time?
CHAIR: And that is what we heard from the Law Society of New South Wales, which was talking about redress for individuals and how unless there is an attribute there is not that redress.
Mr Buchanan : To echo what Robin said, the area where I feel uncomfortable and disappointed as to our role at times is exactly this, that we have got a law enforcement role in this area but individuals are looking for redress. Sometimes we can meet that need—and there is no doubt of that—within our legislation but the model you are talking about is really the more effective model and complementary to what we do.
Ms Banks : My frustration is we have virtually no prosecutorial function, so it is a downside for both of us in some ways and an upside for both of us in others. That has been the topic of quite a lot of conversations among the commissioners across Australia. We see wrongs happening but without somebody bringing a complaint to us—with the exception of this jurisdiction where I can conduct an own-motion investigation—it is very hard to actually deal with them. At the moment I cannot take those investigations into a tribunal and get a binding determination. Hopefully, I will be able to in the future, but we are still waiting on the form of the law. But a gap in our antidiscrimination law is that it has always been treated as a harm against the individual rather than as a broader harm.
Mr SYMON: I would like to ask you about some of the figures you gave us before on the breakdown across occupations, particularly the 13 per cent in retail. Can you give us some details as to what type of bullying complaints they were? Were they what has been described previously as overt or were they more covert? Has there been a change over the years?
Mr Buchanan : I have only been doing this for three years, so I am going on that experience. Certainly in retail I think you will find we are talking about overt bullying. I do not see it as covert. It is just bad behaviour by, typically, business owners or managers in organisations. Has it changed? I really cannot comment. I have not been at this long enough to observe the trends. The only trend is that, as I said at the outset, we are seeing a growth in complaints. We saw a spike when the Victorian prosecution came through a couple of years ago, and then it tailed back down. But, as I said, for some reason this year we have seen a doubling and no sign of it easing back.
Mr SYMON: You gave us percentages. Do you have the actual figures behind those percentages? The percentages do not really mean that much to me, being from interstate.
Mr Buchanan : We are typically, at the moment, getting one complaint a week, so these are not huge numbers.
Mr SYMON: They are for the size of the workforce.
Mr Buchanan : For the size of the workforce, that could be considered huge. Year to date, we have had 26 bullying complaints, according to where I got the numbers from. That is taken over a three-year period, in that period where they have doubled. So, with 13.8 per cent, we are probably talking about those figures being in the region of 12 or 13 complaints in retail.
Mr SYMON: Is there a time or a place when you pass complaints over to the ADC? Does that happen on an informal or formal basis?
Mr Buchanan : I think we can do it better. That is one of my more recent thoughts, and Robin alluded to the fact that we have been having some discussions about this. One of our first steps when we get a complaint is to consider: was this matter something that might have been better dealt with by the police—has there been an assault—and we may refer that person down that path. The other question is, 'Has there been unlawful discrimination,' in which case we would refer them to Robin. We had a really strong recent case that I looked at and thought, 'In many respects, I'd like to take this on,' but the issue was about gender discrimination, bullying manifesting itself that way, and we pushed that one towards Robin. I think there is a better process we can follow, though. We tend to give them the details and say, 'Here you are; this is where you find these people.' I think we could have a better process between us for how we refer these things over.
Mr SYMON: Neal, you said you had two 'experts' on workplace bullying working for Workplace Standards Tasmania, so cases get referred to them. What type of training have they got above and beyond the rest of your inspectorate?
Mr Buchanan : They have been to a lot of seminars. I am not sure. The one I would call our expert was an expert when I arrived. But, in terms of formal training, I know he has been through a lot of different seminars. It is also a personal interest of his, and that is why we tend to go to him. With the other one, I felt like I needed a second person, particularly from an investigation point of view. I come from an industry background where I have dealt with a lot of these things, so I suppose I have taken him under my wing, so to speak, from the point of view of what we are looking to investigate, what bullying looks like. So that has been a mentoring role for me.
Mr SYMON: Is there any scope in your organisation to spread that knowledge out into the space that employers occupy? At the moment, one of your functions is to investigate complaints in that area. What is happening on the educational side for employers in Tasmania? Does the regulator have any role in that at the moment?
Mr Buchanan : We could do. Eighty-five per cent of what we do, our interventions in workplaces, tend to be around guidance and information rather than formal enforcement. Having said that, do we have a formal program of education, formal sessions? No, we do not. If I were to go down that path, I would need to shift resources away from another area into that, realistically, to be able to do it.
Mr SYMON: I think the idea of this inquiry is how we identify additional resources, because I am sure you need the resources you have already.
Mr Buchanan : I am always encouraged when people like Kevin want to give me more resources, as he did this morning! And I have learnt from my time in government that one should never talk down the need for resources. If the community wanted to expand our role, then we would need to be resourced to do that. At present, our level of resourcing is sufficient for what we are doing, but I recognise there are many things that we could do more of than we currently do.
CHAIR: But that would include more than just a prosecutory role; that would include whether or not you go out and do, hypothetically, some early intervention, mediation or other things we have talked about, rather than just asking, 'Has this breached the Occupational Health and Safety Act?' They are the other types of roles you are obviously considering.
Mr Buchanan : We do that now, though. We should not see our role too narrowly, but it is an incidental thing. We will get a complaint and we will go out. That regularly leads to an outcome that is satisfactory. We are approaching it from the point of view of what compliance with duty of care obligations looks like rather than saying, 'Let's go out and resolve this issue for the individual.'
Mr SYMON: Robin, you talk in your submission about the definition of prohibited conduct under the act and how it could be used as the basis of a definition of bullying in relevant workplace legislation. I take it there would have to be a change to the attributes, because they may limit how workplace legislation could be applied. Am I reading that the right way?
Ms Banks : Yes. Section 17(1), which is titled 'prohibited conduct', deals with a scope of conduct that 'offends, humiliates, intimidates, insults or ridicules'. At the moment it is only expressly unlawful—I say 'expressly' and I will come back to the other argument in a second—if the discrimination is on the basis of any of seven out of the 20 attributes: gender, marital status, relationship status, pregnancy, breastfeeding, parental status or family responsibilities. There is a proposal that came out of a review done several years ago to extend section 17(1) to protect all 20 attributes under the act. That would make some difference. It would not deal with bullying behaviour that was not related to the attributes, and I don't think discrimination law can do that. The nature of discrimination law is that it is about people being treated in a particular way because they have an attribute that has traditionally been disadvantaged.
Mr SYMON: My point is, if it is transferred over to another area, would it need to be expanded to cover things outside the current list?
Ms Banks : I am not sure. I have not thought about that. The kind of conduct we are talking about is behaviour that 'offends, humiliates, intimidates, insults or ridicules'. Most if not all of the issues I have had people talk to me about would fit into that definition. The behaviour has had that effect. It is an interesting question. I guess one thing that is not there is behaviour that 'excludes', and that is certainly a form that bullying can take. So it may take some consideration to make sure it captures all of the things you are hearing about.
There is a subjective element to it, so the person has to have felt offended et cetera, but there is also the element that a reasonable person would have anticipated that they would feel that way. So the question is not: was it reasonable for the person to have felt offended? That is quite different, because reasonable people do not necessarily have the same sensitivities as a person who has been the victim of bullying. So it is an objective test in a slightly different way than we are often used to in law.
The reason I referred to the 'express' protection relates to case law. The history is that sexual harassment prohibitions came out of sexual harassment being recognised as a form of discrimination initially, and then it was expressly added to make sure people understood that. So the first sexual harassment claims in Australia were argued as a straight discrimination argument. That is available as well under discrimination law now; it is just sometimes not as obvious that it works that way.
CHAIR: Thank you very much for coming here today. Your evidence has certainly been very helpful. If there is anything you would like to provide the committee, please don't hesitate to forward any additional information or any ideas that come to you after today to the secretariat.
Ms Banks : Can I just make a correction to the submission? I added something to it late in the day. I said that the tribunal had never used the power to fine, but actually it has once issued a fine for a breach of the act. Apologies for that misstatement by me.
CHAIR: No worries. Thank you so much.
Resolved (on motion by Mr Ramsey):
That this committee authorises publication of the transcript of the evidence given before it at public hearing this day.
Committee adjourned at 14:09