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Content WindowStanding Committee on Education and Employment - 17/07/2012 - Workplace bullying
REITER, Ms Nadja, Industrial Liaison Officer, Northern Territory Working Women's Centre
UEBERGANG, Ms Rachael, Co-coordinator, Northern Territory Working Women's Centre
Subcommittee met at 08:17.
CHAIR ( Ms Rishworth ): I declare open this public hearing of the House of Representatives Standing Committee on Education and Employment inquiry into workplace bullying . The inquiry was announced by the Prime Minister and the Minister for Employment and Workplace Relations and was referred to the committee in May. The minister has asked us to complement work that is currently underway to develop the code of practice on preventing and responding to workplace bullying and initiatives by state and territory governments.
The committee continues to receive a strong response to its call for written submissions from organisations and experts in the field, as well as many individuals who have experienced bullying in the workplace. As well as the formal public program, which is broadcast and will be authorised for publication, the committee has set time aside to hear from individuals about their experience of bullying in the workplace. To encourage maximum participation by individuals who may be reluctant to be publicly identified, the media will not be permitted to report on these individual impact statements and none of the statements provided to the committee will be published. Only those wishing to make statements or to observe proceedings will be allowed to be present in the room.
In order to allow the media to film the fully public parts of the proceedings for this inquiry, I now ask a member to move that the committee approve the televising of the public proceedings for the workplace bullying inquiry unless otherwise provided.
Mrs ANDREWS: I move that.
CHAIR: Thank you. I will also ask you, Karen, to move that the submissions in the circulated list, and in particular the submission from the National Network of Working Women's Centres, be accepted as evidence and authorised for publication.
Mrs ANDREWS: I move that.
CHAIR: On that note, I would now like to welcome representatives from the Northern Territory Working Women's Centre to today's hearing.
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. Thank you for your submission. I invite you to make an opening statement to your submission and then we can proceed to questions.
Ms Uebergang : Thank you for coming to Darwin for the inquiry. I must say when I first heard about this inquiry I felt quite a lot of relief as workplace bullying has been such a difficult issue for working women's centres for so many years. I often refer to it amongst my colleagues as a big black hole. It is the issue that we struggle with the most of all the industrial issues and workplace matters to find a remedy and to be able to find something that we can offer the client that comes to us.
When clients come to working women's centres it is our job to give them a range of options on what they can do to address whatever the issue is, and workplace bullying is certainly the one where we struggle to find some sort of meaningful options. I refer to it as the big black hole also because it so resource intensive for staff and for us as an organisation. If staff are dealing with one or two serious workplace bullying matters, basically they are offline for hours and hours and hours while supporting those women. You would have seen from our submission that workplace bullying, according to national working women's centres statistical data, ranks as No. 1, 2, 3 or 4 in terms of issues and has been so for years and years and years. That is very consistent across all the working women's centres in Australia.
I turn to the impact on the health of people who have been bullied. I am not really sure that it is terribly well known how devastating the impact can be. It is no exaggeration to say that we have been working with women on the workplace bullying issue when they have been hospitalised—and that is not uncommon at all—for a range of things such as stomach ulcers and heart conditions. Of course, we are not doctors. We do not know exactly how many are underlying medical issues and how many are exacerbated by workplace bullying. But I don't think it is a coincidence that that happens as often as it does.
Then there are the mental health issues, which are so extensive, particularly suicide and thoughts of suicide. I would have never imagined, as part of working in a working women's centre, just how often women who were being bullied at work would be having suicidal thoughts. It is because of the work we do in the area of workplace bullying that we in the Northern Territory Working Women's Centre have a policy that all staff, including our administration officer, must do suicide intervention training because of the frequency of women calling us and saying things like, 'I just don't know if I can go on,' 'I don't know how to cope with this,' or, 'This just needs to go away,' or using other expressions.
It is fair to say that there has been some awareness raising on this issue in the last few years, and it has been really good to see a number of organisations introduce their own workplace policies and their own community education type programs.
Unfortunately that is not enough. It is great if a workplace that is experiencing workplace bullying problems invites in an organisation like ours to do a workplace bullying session with them, but it is not really going to have a lasting impact. What we find happens is that when a workplace is having some sort of implosion because of the workplace bullying and the workplace invites us in to do a workplace bullying session, in some ways it can make the matter worse. It raises the hopes of workers, they think that their workplace is taking a positive step in the right direction and they do the workplace bullying training, but without the policy support for the workers to make the complaint—or even if there is a policy practice in place but it is not well understood by management or management do not have the skills to investigate and pursue the complaints—it can leave them worse off. It just raises their hopes and then they are left with nothing.
Also, outside of the workplace, without legal remedies or external places for people to make complaints, they are being left on their own. In terms of legal remedies, it is just so difficult to find options for our clients. It is terrible to say it, but the 'lucky' people are the ones who have some element of sexual harassment or discrimination or whatever that we can attach their issue to those sorts of discrimination complaints. Of course there are issues with other processes like unfair dismissal and discrimination complaints, workers compensation claims and all of those processes—none of them are perfect—but the issues pale in significance to those for people who are trying to find some way of making a workplace bullying complaint.
It varies across jurisdictions. I think there are other jurisdictions in Australia where the equivalent WorkSafe bodies are better equipped to take on complaints and investigate them. We unfortunately do not have much success in the Northern Territory in making complaints to our equivalent body. We would definitely like to see some stronger legislation in terms of options for complainants. We think that a range of options needs to be made available. There are some people who are experiencing workplace bullying who do not necessarily want to come face-to-face with the person who has bullied them or their workplace in a conciliation conference-style format like what is typical in an unfair dismissal claim. Some people would prefer to just make their complaint and send it off to an authority who then investigates it and takes carriage of the matter. That is why we say that we think there needs to be a range of options available to suit the needs of the particular worker. It is pretty clear to us that there is no sufficient deterrent for workplace bullying, because if there was a sufficient deterrent we just would not see the sheer volume of women coming to us with these problems.
CHAIR: Is there anything else you would like to add, or shall we go to questions?
Ms Reiter : No, I do not have anything to add.
CHAIR: Thank you very much for your submission. I think you have picked up on a number of things that we have been hearing previously. We have heard of a range of different elements that people think could be remedies for people. One of the issues in terms of it being investigated through occupational health and safety is that the investigators, when it gets to an investigation point, are looking at whether people have breached the act, not really about whether you are looking for a quick resolution. While I recognise that some people do not want to go through a conciliation process, if people have not been dismissed and would like it resolved, apart from going down the anti-discrimination path, is there any way to conciliate workplace bullying currently in the Northern Territory—to sit down with an independent person to talk the issues through?
Ms Uebergang : No, absolutely not. An example is a not-for-profit organisation where workplace bullying is happening. The health and community services sector generally is always overrepresented in Working Women's Centres statistical information in terms of workplace bullying and other issues. The only way for something like that to happen is for them to have a HR person who might offer a meditation, or they might invite an organisation like the Community Justice Centre that runs free mediation to come in and do it.
We are extremely cautious with mediation. In most instances when women come to us and have experienced bullying at work it is our assessment that the bullying relationship has proceeded to the extent that it is no longer safe for her to enter into mediation. The imbalance of power is so profound that she is just not able to speak freely and openly and make requests of the other person to reach an agreement. Mediation relies on two parties participating equally and voluntarily, and that is very rarely the case in the sort of bullying we see. Early on in the piece, if the bullying has just started and you are trying to nip it in the bud, perhaps, but the women who are coming to us and who we are spending hours and hours with are just not in that category.
CHAIR: What do you think would be a good remedy for the women in that category? One suggestion from the Law Society of New South Wales is a conciliation process under Fair Work, as opposed to occupational health and safety laws. What you think of that point? We are talking about the stage before they leave the workplace, before they perhaps want to look for compensation or a payout from WorkCover. A lot of people have been saying to us that they want to stay at work but they just want the bullying to stop. What remedy do you think could be used at that point, where HR mediation is not going to work but people are not ready to leave work and lose the connection? What do you see as some solutions there? One suggestion has been Fair Work. Another suggestion has been an independent authority such as the equal opportunity commission. I am interested in your thoughts around what can be done at that point.
Ms Uebergang : I think Fair Work is an appropriate place. There definitely is a gap there. There are the adverse action provisions. If a woman is being bullied not for any one of those reasons then—
Ms Reiter : That shifts it.
Ms Uebergang : Yes. She slips through. So it makes sense for it to be picked up there. I would like to see something like that. I think it would be unsafe and really inappropriate if it required the person who was being bullied to sit face to face with the person who was bullying her. I don't think that would be appropriate at all. But if it were a supervisor, a manager or somebody else from the workplace who could sit face to face in that conciliation conference with the woman who was being bullied then that could be okay. Of course, it would need to be voluntary. Yes, I think that would be an appropriate thing, but it should not force a person who is being bullied to sit around the table with someone who is allegedly bullying her. I could not see that working at all.
CHAIR: What do you think needs to be put in place as a deterrent, and where should it sit? Should it sit in occupational health and safety? Where do you see the deterrent fitting and what do you think the deterrent should be? There is a duty of care. Should the deterrent be directed towards management? Should it be directed to staff? Where should that deterrent fit?
Ms Uebergang : I would like to see it sit in more than one place. I think it would be good for it to sit within occupational health and safety legislation but within the Fair Work Act as well. My sense from talking to my colleagues in Queensland and South Australia is that the occupational health and safety legislation, particularly in South Australia because bullying was identified in the act itself, was a strong deterrent prior to harmonisation. I don't really know how that works because we have not seen it in the Northern Territory. We had guidance material introduced here only last year. It is very new.
On the ground, I do not know what it is like to have a deterrent. If we think about it logically, I would imagine that, if workplace bullying is identified in the act and there is a code of practice and some prosecutions happen that are made public, it would have some impact, but we do not have that experience here at all.
When there was the high-profile case that happened in Ballarat a couple of years ago against the radio station—somebody can correct me if I am wrong—regarding workplace bullying, I think that had an impact on the community. Some big money was attached to the employer for them not creating a safe workplace. I think we need to see some more of that.
Mrs ANDREWS: I have a couple of questions, but could we start with an outline of the process? If someone contacts your organisation and alleges that they have been subjected to workplace bullying, what is the process that you follow to deal with that issue?
Ms Uebergang : We would have an appointment with her, either face-to-face or over the telephone. The policy of the Northern Territory Working Women's Centre is that we generally offer women one appointment and then, if we think that her case has merit and we have capacity and we can assist her, we will make an assessment as a team as to whether we can take her issue on as a case file not. We do that for all issues except workplace bullying. Because of the intensity of workplace bullying and because women often, by the time they come to us, are so affected in terms of their short-term memory and their ability to take information in, remember it and make decisions, we offer two appointments. The first appointment is usually about letting them debrief a bit and at the second appointment we can begin to talk about their options. In the second appointment we talk to her about whether she could make a workers compensation claim and whether she would consider a formal written complaint to NT WorkSafe, and we would give her some information about unfair dismissal and constructive dismissal in the event that she is terminated or forced to resign. We would poke and prod and search and do anything we can to see if there is an element of discrimination, to see whether it might be possible for her to make a discrimination complaint.
Ms Reiter : We spend considerable time on assessing her mental state of mind and see whether she needs support and what sort of support she needs and would refer her to adequate organisations, given we are not a counselling service. That session takes up a lot of time.
Ms Uebergang : In the end, we generally do not tell a woman what we think she should do. We give her as much information as we can and then we would probably say to her, 'Go away and think about it and then come back to us. You need to decide what is best for you.'
Ms Reiter : We would assess whether there is an internal avenue for her—that is, whether there are any internal policies or guidelines within the organisation that she could follow and to what extent she has already exhausted these avenues and what the outcomes were. Sometimes there are policies that she could follow, but sometimes that is just not an option anymore, depending on how bad the issue has progressed already.
Mrs ANDREWS: What about support for the woman in returning or remaining in the workplace whilst the process of dealing with the complaint goes ahead? There just seems to be a gap in that a complaint is made and then there is the prosecution of that claim, but what support is there for the woman in the meantime who will potentially have had an appointment with you but needs to immediately return to the workplace? You have already provided evidence that the process to resolve the claim can be very time consuming and quite lengthy. What support is given to the woman in the workplace that you are aware of, even if it is not by you? How would you help that woman?
Ms Uebergang : There is just no support for those women. They go into a situation that is extremely volatile.
They take a really, really big risk when they make the decision to make a complaint. We can offer them some support; they keep coming to us for appointments. We hope that there are some of them who are union members and who can get some support from their union.
Ms Reiter : We would refer them to counselling services—if that is what you mean—like Lifeline or EASA or some sort of psychological help.
CHAIR: In the cases where the person bullying them is a work colleague or a group of work colleagues, have they, when they come to you, spoken to their manager about it or not? Are there cases where they have raised it with their manager and they think it has not been dealt with effectively or do they come to you before they have even raised it with their supervisor or manager?
Ms Reiter : Both. They come at any point in time from the very start, before they have even raised the issue with anybody, to cases where they have gone through the entire process within their organisation and it has not come to any acceptable solution for them. They come at any point in time, really.
Ms Uebergang : Very often, women do not know it is workplace bullying: they have not identified it as such. They feel like they are going a bit mad. It does not add up and they are feeling sick and they do not understand, so it is often we who help them put the label to it. Of course, there are the, very rare, instances where other people say, 'Oh, it's bullying,' but it is not, according to our assessment.
CHAIR: One of the issues our committee is hearing a lot is that there is no standard definition. While there are themes that apply throughout the country there does not seem to be a finite definition. There have been problems for employers when people have said, 'I'm being bullied,' but, when they drill down to some of the definitions in the occupational health and safety legislation they find that what has been going on has not perhaps quite fitted the definition. I do not know what your experience is around the definition. What definition do use?
Ms Uebergang : It is an interesting debate. We actually shy away from talking too much about the definition, because it leads to so much discussion that it can detract from the actual issue. So we do not have a standard definition. As long as we are talking about repeated events—we are not talking about a one-off incident; we are talking about repeated events over a period of time that leave a person feeling powerless, and that they are harmed physically or psychologically. That, as far as we are concerned, is workplace bullying.
CHAIR: Have there been any situations where someone who has not raised it with their management—where it is not management who is conducting the bullying— has come to you, put a label on it, gone back to management and felt they had had a good resolution of it? If that is the case, do you know what the key ingredients were to that good resolution?
Ms Reiter : It has happened, and the key would be good management—that is, a management taking the bullying complaint on board, following a certain procedure and making sure that it does not happen in or that it is addressed appropriately for everybody involved. I would say that that is a rare case. It has happened, but I would say it is dependent on a management taking appropriate steps.
Mrs ANDREWS: On the question of process, and this is probably in just been touched a little bit. Potentially there is bullying between peers—co-workers could potentially be bullying each other or one person could potentially be the victim of that—but it can also go beyond that as well: it could be a supervisor being bullied by one of the people that they have to supervise. You could also have a situation in a workplace where someone is being bullied by a client who comes in. Is your process different when you deal with each of those different categories, or types, of bullying or do you deal with it in the same way?
Ms Uebergang : It is essentially the same, whether it is bullying up, down or sideways. The issue of being bullied by a client or customer is not really something that comes to us. I cannot recall that happening before.
Ms Reiter : No.
Ms Uebergang : It is not that it doesn't happen, but women do not come to us with that complaint in particular.
Ms Reiter : I cannot recall one.
Mrs ANDREWS: It does get reported from time to time, particularly in the retail sector.
Ms Uebergang : Domestic violence is the other issue. It is the same in that a woman who is being abused at home may have a violent partner who abuses her at work too.
Mrs ANDREWS: So it would be a similar sort of process that you would follow.
CHAIR: I have a question about harmonisation. Obviously the Northern Territory is going to be part of the harmonised safe work laws. There is the draft code of practice. I don't know if you have seen that or had any input into it. You have already touched on your views about harmonisation, saying that you would perhaps like to see—I am putting words in your mouth a little bit now—bullying being addressed either within the act or in the regulations. You would like a requirement that legally has to be adhered to, as opposed to guidance or a voluntary code of conduct. Is there anything you would like to add, or would you like to comment on whether or not I have summarised your views on that properly? That seems to be what you have suggested. Do you have any views on that or on the code of conduct?
Ms Uebergang : I am happy with that summary. I definitely would like to see it in the act or in the regulations. Perhaps this does not apply to other jurisdictions. I am not sure about my colleagues in South Australia or Queensland, but sometimes Territorians don't really follow the law that much. They think that, unless they see big prosecutions, it kind of does not apply to them. So, unless the bar is set at a reasonably high level, it will not get on their radar.
CHAIR: We have heard that even in New South Wales, where there have been significant complaints, there has only ever been one prosecution of workplace bullying. I don't know if there have been any prosecutions here for workplace bullying.
Ms Uebergang : I have not looked at any of the data that came out of the 2011-12 financial year from the department of justice or NT WorkSafe, but certainly when I looked at the 2010-11 data there was nothing that I could see in terms of improvement notices being issued or any prosecutions in relation to workplace bullying. So I know of none from what I have looked into. I think that needs to happen. The community needs to see that happening. I think there is a bit of a perception of, 'Who's going to worry?'
Mrs ANDREWS: A statement was made in your submission, on page 4. It says:
Many clients report that when they try to have a conversation with a bully and/or manager about not coping, they are asked to suspend their employment until they can provide medical evidence from a qualified practitioner (usually a psychiatrist) of their fitness to attend work.
Are you saying that in your experience when some women who believe they have been bullied raise it they are immediately asked to take time off work?
Ms Uebergang : Yes, definitely. I think employers sometimes get a little bit scared. They do not know how to deal with it, sometimes even employers who are very well intentioned. Having someone do an education program in your workplace is not that difficult. Introducing a policy is not that difficult. But then when you get a complaint, when someone raises it with you, it is a whole different ball game. I don't really know why employers would do this, but my guess is that they just need a bit of time to seek some advice to figure out what to do next, who on earth would investigate it and what it would cost them.
Mrs ANDREWS: Is it possible, in your view, that the employer is offering that as a way to try and resolve the problem? 'If you need some time away from work, that's okay.' Is that a possibility? If so, is it a reasonable thing to do as a means of trying to address the situation?
Just to explain that, there seems to be that gap between there being a problem and then some sort of litigation. How do you deal with what is happening in between those?
Ms Uebergang : I think how workers would feel about that would be different and varied. Some workers would be very appreciative of the time to get out of there—hopefully, while they are still being paid; presumably, they would be—have some time out and focus on something else. Other workers would feel that they are being removed because they are the problem. I can just imagine it; I have heard workers say similar sorts of things before, like: 'Hang on; why am I being taken out of the workplace? I haven't done anything wrong here.'
Mrs ANDREWS: So it is really a case-by-case scenario in trying to deal with these things?
Ms Uebergang : Yes.
CHAIR: I have one final question—we have run out of time. We have heard a lot about managers being well intentioned but not really having the knowledge to deal with this issue. I think you are right that they have the policies and procedures in place and try to do the right thing but are a bit confronted when there is a complaint. Is there anywhere for them to go to seek advice? For instance, could they ring you and ask you questions, or occupational health and safety bodies? Who could they ring to get some quick advice which would help them deal with such situations?
Ms Uebergang : I do not know.
CHAIR: Fair enough.
Ms Uebergang : I can think of some particular government agencies where you might be very lucky; you might get someone on the other end of the phone who is very knowledgeable and is very helpful—but you might not.
CHAIR: Okay. Thank you very much. We very much appreciate your attendance today. We have run out of time; but, if there is anything else that you would like to provide to the committee at any point, please do not hesitate to do so. You can forward that to the secretariat. You will be sent a copy of the transcript of the evidence you have given here, to which you can make corrections of grammar or fact. Thanks again for attending today.
Ms Uebergang : Thank you.