ESTREICH, Mrs Pamela, State Inspector, WorkCover Authority of New South Wales

WATSON, Mr John, General Manager, Work Health Safety Division, WorkCover Authority of New South Wales

Committee met at 09:29

ACTING CHAIR ( Mr Ramsey ): I declare open the House of Representatives Standing Committee on Education and Employment's first inquiry into workplace bullying. The inquiry was announced by the Prime Minister and the Minister for Employment and Workplace Relations and referred to the committee in May. The minister has asked us to complement work currently underway to develop a code of practice preventing and responding to workplace bullying and also to initiatives by state and territory governments. The committee has received a strong response to its call for written submissions from organisations and experts in the field and also from many individuals who have experienced bullying in the workplace.

As well as the formal public program, which is being broadcast and which will be authorised for publication, the committee has set times to hear from individuals about their experiences of bullying in the workplace. In order to encourage maximum participation by individuals who may be reluctant to be publicly identified, the media will not be permitted to report these individual impact statements and none of the statements provided to the committee will be published. Others wishing to make statements or observe proceedings will be allowed to be present in the room. I ask individuals who are present and who would like to make a statement about workplace bullying to make themselves known to the secretariat staff. The time allowed for each statement will be determined by the number of people wanting to participate in the limited time we have available.

Is it the wish of the committee to approve televising of the public proceedings for the workplace bullying inquiry, unless otherwise provided? There being no objection, it is so ordered. Also, is it the wish of the committee that the submissions in the circulated listed be accepted as evidence and authorised for publication? There being no objection, it is so ordered.

I now welcome the representatives of WorkCover, New South Wales, 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 the proceedings of the respective houses. Do you wish to present a submission or make an opening statement?

Mr Watson : If I may, with the committee's indulgence, make a brief opening statement. WorkCover has made a submission to the committee to assist it in its deliberations. WorkCover New South Wales is responsible for monitoring, regulating and delivering worker's compensation and injury management systems in New South Wales, as well as work, health and safety arrangements. We provide inspection, incident and complaint investigation. We mediate on disputes and, where necessary, we apply penalties and undertake prosecutions. We also license certain defined premises and certain occupations.

In January 2012, we introduced the nationally consistent work, health and safety legislation in New South Wales. It passed through the New South Wales parliament in the middle of last year. That legislation is supported by the work, health and safety regulations. WorkCover deals with quite a large number of matters relating to bullying in the workplace. We have some 5,000 inquiries per year. That is about 2.5 per cent of all the inquiries we receive through our information service.

Of course, we understand that workplace bullying is an unreasonable behaviour directed towards a worker or a group of workers that creates risk to health and safety. Repeated behaviour refers to a persistent nature of behaviour and can refer to behaviours over time. Unreasonable behaviour is that behaviour that a reasonable person, having regard to the circumstances, would see as victimising, humiliating, undermining or threatening. This is the way in which we apply that definition to the work that we undertake.

We have developed a number of responses to bullying in the workplace and a number of responses to the way in which we deal with people who come to our notice. We have a WorkCover bullying prevention service which allows people to make a call to us. We then assess that caller's disposition and, if necessary, refer that to a professional counsellor who then encourages them to make a submission to us in writing to allow us to conduct an investigation. Clearly, some callers can be extremely affected by what they have had to confront in workplaces and so we are conscious of that and certainly make sure that we meter our response in accordance with the situation that confronts a particular worker.

I think that probably concludes our opening statement. I am happy to open it up for questions from the committee.

ACTING CHAIR: Thanks, John. Is there anything you want to add, Pamela?

Mrs Estreich : No, not at this time.

ACTING CHAIR: Then we will go to questions. I will start the ball rolling. Obviously, this is our first hearing so we are just getting the feel of the subject at the moment. The first thing that, as a committee, we have to decide is whether laws in place at the moment are adequate, around Australia, or whether things need to go further. I think you identified 5,000 inquiries a year around the issue of workplace bullying. Can you give us some idea, John, of whether you feel that you are adequately dealing with those complaints at the moment?

Mr Watson : The first thing to say is that regulators such as WorkCover need to continually refine their approach to a particular workplace hazard. We see bullying in the workplace as another risk that needs to be managed in the workplace, but we do need to redefine how we approach that. We have certainly been doing that.

As to the laws that cover—that is, the laws that we can apply to a situation to drive compliance—we believe that the Work Health and Safety Act as it stands now in New South Wales is quite strong in respect of the category 1 offence. Category 1 really deals with where a person is reckless as to the risk to an individual of death or serious harm or illness. That carries quite a substantial penalty. As the work health and safety national model legislation rolls out across jurisdictions this will become more consistent, and you will no doubt be aware that a number of jurisdictions have not yet taken these up. Some of them are before parliament and so on. No doubt, as you move around the country, you will hear that. But in New South Wales, under this legislation we have in place now, a person conducting a business or undertaking—many people would know them as 'employers', but the legislation talks about them as PCBUs, 'persons conducting a business or undertaking'—there is a maximum penalty for that category 1 offence of $300,000 or, indeed, a five-year imprisonment, or both, and if the PCBU is a corporation then that can extend to $3 million. So there is quite substantial penalty. These are the most serious and heinous matters that we would come across within workplaces, that we would deal with under category 1.

We also have some experience of dealing with matters in workplace bullying in our New South Wales Crimes Act and in making modifications to the previous legislation in New South Wales, the Occupational Health and Safety Act. Following a state government inquiry into workplace fatalities, the NSW government of the time modified that legislation with the provision of section 32A which was essentially an industrial manslaughter type offence. But, even with that, we have used the Crimes Act in New South Wales in particular matters, and there is one matter in particular, involving John Catanzaro. I might get my colleague Pam Estreich to outline that matter, and that will give you some indication of how the legislation works in that area.

Mrs Estreich : The incident occurred on 23 April 2010, so it fell within the Occupational Health and Safety Act 2000. Mr Catanzaro was employed as a concreter and was on a construction site up at Newcastle. This was a practical joke by his colleagues. He was getting married the following day and this was their way of showing the fact that he was getting married.

Mr Catanzaro was grabbed. His clothes were cut from him with a knife. He was then tied to a cement reo and then placed up against wire fencing in a star-like position. Two employees then proceeded to throw eggs at him, and then one employee decided that he would go to the truck, get some petrol and pour petrol around him. Then he lit the petrol, and the consequence was that Mr Catanzaro received severe burns to both his legs. The matter has been heard in court just recently.

ACTING CHAIR: So the outcome of that case is not known yet.

Mrs Estreich : Yes, it is known. The four employees who had some involvement with the incident came under section 21 of the Occupational Health and Safety Act 2000. The outcome of that was that Mr Zaccardelli received a $2,000 fine, but Mr Zaccardelli was also charged under section 54 of the Crimes Act for lighting the fire and causing grievous bodily harm by a negligent act. Christopher Galea was also fined under the Occupational Health and Safety Act, and the other two gentlemen were discharged on condition that they enter into a good behaviour bond. That outcome was recent and has been finalised.

ACTING CHAIR: I have one question, which I think will be short, and then I will hand over to someone else in the committee. With the way WorkCover works, normally you would only become involved when someone has been to a doctor, I presume, and received time off work or that type of arrangement.

Mr Watson : No, that is the workers compensation system. Under the work health and safety system, we are happy to receive complaints from workers about what is going on in a workplace on any work health and safety matters. Matters like this sometimes come to our attention through the emergency services. Where an ambulance is called, the police are usually called at the same time if it is a workplace incident, and the police radio and inform WorkCover. Then we make an assessment about the level of response we need to make to that matter.

ACTING CHAIR: Do you get contact from employees saying, 'I'm being bullied at work'?

Mr Watson : Yes, we do.

ACTING CHAIR: So they would come to you. They are not intimidated by the process?

Mr Watson : That is the majority of those 5,000 calls that we would receive. They are unsolicited calls that come to us. There is no question that, when people get involved in the sorts of investigations that our investigation unit carried out into the matter that my colleague has just outlined, it is a very formal investigation process where evidence is taken and cautions are given. That can be very confronting to people involved in that, who may have had nothing to do with a legal process previously. We understand that, and we assist people through that as best we can, but clearly we have to preserve our evidence for a case that may go before the court.

I suppose people approaching the regulator will have mixed views about what we can or cannot do, and in some cases they are concerned about doing that because of the possibility of some retribution in the workplace if a WorkCover staff member—an inspector—turns up to conduct an investigation or to make some inquiries about what is going on in the workplace. If it is a small workplace and there is only one person who has had any difficulty then, even though we will not reveal who has made the complaint to us, it is fairly easy for people to draw conclusions. That is a difficulty in some workplaces.

We have done a lot of preventative work. We thought that what we need to do is get ahead of the game here. We do not want to be following up the sorts of situations that have been outlined to the committee already. We would much prefer to be getting ahead of the game and doing it in a preventative way.

So we introduced a seven-step process of going around and encouraging workplaces to ensure that they thought about how they are managing the risk of workplace bullying in their workplaces—what they can do to set up training for employees and managers, and putting in place a systematic approach for managing this risk, like you would for any other risk in the workplace. That has been fairly successful in making sure we have a baseline in place. That does not mean there will not be failings in those workplaces where we have had that engagement.

What we found from that is that, in many small workplaces, the capacity of the workplace to implement those sorts of controls was limited, and that is really because of the nature of the business, in a way. If you think about a small-business owner who is a plumber, for example, he has set up his plumbing business, he has employed two or three people and he is a very good plumber, but he may not be a business manager, as such, when it comes to managing personnel and managing the interpersonal relationships that unfold from managing personnel. They are the sorts of issues that we work through.

To address the concern about people contacting us, that is why we set up the bullying helpline environment. We thought that would allow people to talk to somebody who is professional. It would also allow us to do a bit of triaging about the complaints that we receive, which I think is important. We do not want to investigate matters where people are just being dealt with for their performance in a workplace quite appropriately but they consider that to be bullying when it may not be; it may really be an underperformance issue that is being dealt with. We certainly need to make sure that is the case, but we do not want to waste resources investigating that as a bullying matter when in actual fact there are other matters which are far more serious, as you can see outlined. We go through that process with them and that is why we have gone to the written documents. When people need to write things down about what is happening to them, it allows them to form a view about whether it really is bullying, and we can then deal with the matter appropriately.

Mr SYMON: I would like to go back a couple of steps. You spoke about category 1 offences. Obviously, they are the most serious that come up. I take it from the sample case that Pamela spoke about that there is physical evidence there and you can go back and look at that. What happens when there is no physical evidence—in other words, it is one of the other categories? How does WorkCover in New South Wales respond to that? Does that lead to many convictions or changes of behaviour in the workplace?

Mr Watson : Clearly, when you have physical evidence to place before a court it is easier to prove your case. In many of these matters that we deal with—and Pam has quite a lot of expertise in dealing with these matters and she may want to speak about this in a moment—the reality is that it can quite often come down to an 'I said' and 'He said' sort of environment. It comes down to the skill of our investigators to work through taking statements, crosschecking statements, looking for others in the workplace who may have witnessed certain things going on or those who have witnessed things not going on, particularly if it comes to being excluded from particular events and those sorts of things—it can be quite an insidious type of environment where people are not included in the overall workplace but are excluded—and getting a sense of the general culture of the workplace. We have dealt with matters where the culture of the workplace is one which would provide a climate where bullying could fester away without being addressed. So it comes down to the skill of doing that. I do not want to leave the committee with the view that these are easy matters to deal with. These are quite difficult matters for us to get to the bottom of and they are quite difficult to bring to the court if there is no physical evidence involved. They are quite difficult matters for regulators generally to deal with.

Mr SYMON: At what point does a matter such as that intersect between WorkCover and workers compensation? Is that then fed across, so that once a claim is put in for workers compensation it comes back through WorkCover's process to say, 'Here was a problem. It's now become a claim'? Is that part of what you do?

Mr Watson : We have access. Because the organisation looks after both regimes, we have access to the workers' compensation database. That allows us to do data mining across the claim profile. In the attachments to our submission, you will see some of the costs of claims in New South Wales; they are substantial. Essentially, we use that database to drive our prevention work—so where we have exposures or where we are finding an increase in claims in a particular industry or a particular geographical area. We would then attend to that from the point of view of making it a priority for us to address. That is how it links together.

Equally, we have arrangements with our insurers that if a claim moves from being a medical claim and a time-off claim to wages being paid to a fatality, we get immediate notification of that. This allows us to pick up any suicide matters that might come up after many years. We have matters which go on for a long period of time in the claim system, and this allows us to pick up those particular matters and deal with them in an investigative way. So there are a number of routes that we pick up. I guess it is the intelligence with respect to what is going on.

Mr SYMON: This is my last question for now; I will come back to more if we have time. You spoke about the capacity of small business or small employers to implement controls for bullying in the workplace. Is there a breakdown of figures between small employers and large employers as to workplace bullying claims? Separately to that, is there a breakdown between private and public enterprises with regard to those sorts of claims?

Mr Watson : The workers' compensation scheme that we administer in New South Wales only looks after private businesses. The treasury managed fund in New South Wales looks after government arrangements. Yes, the database could give that information. We could work that through. We have not got those figures in front of us. If you wish to make a submission to us for that information, I am sure we could trawl the database to get it for you.

Mr SYMON: Does WorkCover still look after the workplace, health and safety side of the public service, but the compensation claims are done by—

Mr Watson : That is correct.

Mr SYMON: So it will still go through WorkCover along the way?

Mr Watson : The claim may not do that in the same way that a claim in the WorkCover system would, but certainly any workplace health and safety issues are dealt with. We have some proactive preventative activity in New South Wales government workplaces; it is called Working Together. We go out and deal with workplaces in a proactive way to make sure that they have the appropriate systems in place to manage the sorts of risks I have outlined—not just the bullying ones, but other risks that might arise.

Ms O'NEILL: One of the points you made was about performance versus bullying issues. We also heard from your evidence this morning that the lack of physical evidence creates a problem. Would you explain to us what sorts of issues are performance and what are bullying.

Mr Watson : We have matters that come to us where a manager has spoken to an employee about their performance on one occasion, where they have said, 'We need to see a turnaround in the work that you are doing.' It has been as simple as a performance discussion, a fairly routine performance discussion. That has been interpreted by the employee as bullying. It is not a repeated behaviour. It is not as though the manager has been dealing with them over the last 12 months and excluding them from training or dealing with them in any other way, apart from just dealing with their routine arrangements within a workplace by saying, 'We need to lift our performance in this area and, indeed, you have done really well in this other area.' Sometimes those things are interpreted as workplace bullying.

A lot of caution is needed here, because there is no question that sometimes managers do not deal with those sorts of performance issues as sensitively as they should and this can cause a difficulty. We have to always put ourselves in the position of the person who is talking to us, what they are perceiving and what context they are in. That is a very difficult area for us to work through. That is part of the reason why we put in place the bullying service.

Ms O'NEILL: Mrs Estreich, you gave us an example before about an incident of physical bullying and intimidation. Could you also give us an example of psychological bullying and intimidation that has come before the courts and that has had a clear result like that case?

Mrs Estreich : I do not believe there have been any recent ones that have been to the courts. In the other matters physical evidence was available.

Ms O'NEILL: Just let me be clear. There have been no cases of psychological bullying that have stood up in court so far. Is that correct?

Mrs Estreich : I have no knowledge of any.

Mr Watson : We do have a matter which is under investigation—and would still be sub judice, I have to say—involving a suicide. That matter has all the elements of psychological bullying, even though it involves some physical matters. It has a long trail of workplace culture behind it. I am loath to go any further than that because of the sub judice issue.

Ms O'NEILL: Would it be fair to say that at the moment we do not appear to have processes or the capacity to identify workplace bullying of a psychological kind early enough to be able to respond to it in a way that creates a safe and healthy workplace?

Mr Watson : I don't think the statement is completely true. I think it is true to say that it is more difficult to deal with matters of a psychological nature in the workplace. It requires those in the workplace, particularly those concerned with the management of workplace, to have some understanding about managing that. Indeed, if those managing the workplace are the perpetrators of bullying, that is obviously not going to occur. That is why we see it as necessary to get ahead of the game and ensure that people have appropriate systems in place and an expectation that the culture of the workplace is not to intimidate or bully staff at all.

Ms O'NEILL: You mentioned that you received 5,000 calls that were related to bullying. Is that correct?

Mr Watson : That is correct.

Ms O'NEILL: Then you triage and respond. Could you explain to the committee the resources that you have—the number of staff that you have, where they are located around New South Wales and how easily accessible they are physically?

Mr Watson : WorkCover New South Wales has the largest work health and safety inspectorate in Australia. There are some 315 establishments in the inspectorate. We are spread through locations right across New South Wales. We have offices in places like Narrabri, Griffith and so on, where there are four or five staff, an administrative person and a couple of inspectors who are available to deal with these matters in the field. They are backed up by our strategic investigations unit, where Mrs Estreich is working. That is the skill base we use to support our people. So we have people who specialise in particular investigative activities. Indeed, we can dispatch somebody from a unit in Wollongong, Newcastle or Sydney to conduct an investigation in a geographical area. We do that on occasions.

Ms O'NEILL: If you wanted to improve workplaces generally and you came up with some sort of program to change behaviour and to head towards KPIs that say, 'This is a very healthy place to work,' would you have the capacity to do that? What sort of restrictions in capacity do you have in your work in terms of prevention?

Mr Watson : We have very little restriction in that area. We are funded through the workers compensation system. If we developed a program of prevention and we wished to roll it out as a priority, that is an argument we would have internally about the priorities of the organisation. We go through the planning process, from the point of view of a cost-benefit analysis of the scheme and also from a point of view of good healthy workplaces for New South Wales. So the limitations are not that great. We are well resourced to undertake our work.

Ms O'NEILL: How many calls did you receive that were related to workplace injury but nothing to do with bullying? What is the ratio?

Mr Watson : As I said, it is 2.5 per cent that is 5,000. For example, in 2011 we received 200,533 calls, of which 5,012 were workplace bullying matters. We receive calls about all sorts of things, as you can imagine.

Ms O'NEILL: Thank you.

ACTING CHAIR: In closing, it sounds to me like you feel pretty comfortable about the New South Wales legislation in this area of workplace bullying. Can you identify any clear differences between the New South Wales situation and that of Victoria, given that they have just passed new laws in this area, or are you not sufficiently familiar with those?

Mr Watson : I am familiar with Brodie's law. That is an amendment to their Crimes Act. But I am not sure legislation is the issue here; I think it is actually how we build capacity. It is probably better to think about it from the point of view of the expectations we have in a workplace. I would really like to move to the position in New South Wales where, as mothers and fathers left for work in the morning, their children said, 'Don't forget to work safely today,' just as we would say to our children when we handed over the car keys, 'Drive safely.' That would be a great position to move to. So I think the real push needs to be in the preventative area, setting expectations that behaviours that lead to workplace bullying are just not acceptable in our community.

ACTING CHAIR: Thanks very much, John. I am sure we could have gone on for quite a while, but we have time pressures. I thank you for your attendance here today. If you have been asked to provide any additional information, could you please forward that to the committee secretary—I think Mike raised an issue with you.

Mr Watson : Yes, we will get that information.

ACTING CHAIR: You will be sent a copy of the transcript of your evidence, to which you can make corrections of grammar and fact. Thank you very much.

Mr Watson : Thank you.