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Standing Committee on Education and Employment - 11/07/2012 - Workplace bullying

DAVIS, Mrs Carolyn, Manager Work Health, Safety and Compensation Policy, Australian Chamber of Commerce and Industry

MAMMONE, Mr Daniel, Director of Workplace Policy and Director of Legal Affairs, Australian Chamber of Commerce and Industry

Committee met at 08:32

CHAIR ( Ms Rishworth ): I declare open this second 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 referred to the committee in May. The minister has asked us to complement work currently underway in the development of the Code of Practice Preventing and Responding to Workplace Bullying initiatives made by state and territory governments. Yesterday the committee sat in Sydney, and tomorrow we will be in Hobart before taking evidence in other capital cities. The committee is on a tight deadline, as the minister has requested that we report by the end of November to feed into the development of the code of practice.

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 experiences 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 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 stay present in the room. I would ask anyone who intends to make a personal impact state to make themselves known to the secretariat, so we can schedule you in later this afternoon. The time allowed for each statement will be determined by the amount of people wanting to participate.

I welcome representatives from the Australian Chamber of Commerce and Industry to today's hearing. Although the committee does not require you to give evidence under oath, I 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 and I now invite you to make an opening statement and then we will proceed to questions.

Mr Mammone : Thank you, we do have an opening statement. The Australian Chamber of Commerce and Industry welcomes the opportunity to appear in support of our written submission on an issue of significance for Australian employers and the wider community. ACCI is a peak council of Australia's business organisations, comprising of eight state and territory chambers and 28 national industry associations. The ACCI member network represents over 350,000 employers across Australia and is at the forefront of providing leadership tools and assistance to employers in order to assist in the shared goal of reducing the incidence of bullying in the workplace. Australian employers, including their business organisations, have a zero tolerance approach to serious misconduct in the workplace, including threats or actual violence, intimidation and harassment or bullying. Within that context, the committee should recognise that the business community has a legitimate role in expressing their views on the appropriate legal framework which may affect them in their capacity as an employer.

Bullying involves a range of behaviours and actions, and inevitably involves complex human interactions. Employers remain concerned that allegations of workplace bullying raise contemporaneous legal requirements on the employer to ensure that they do not breach any legal rights of the alleged perpetrator or the alleged victim which can be challenging to manage. Notwithstanding the challenges that employers have in managing allegations of bullying or other claims of serious misconduct, ACCI and its chambers of commerce and industry association members remain committed to raising awareness in the workplace and providing tools and resources to assist employers understand their legal obligations and how to minimise to the extent reasonably possible the incidence of bullying in the workplace. It is generally accepted that bullying is not confined to any particular parts of the community and is not isolated to the workplace; it is a community-wide issue which requires a community-wide policy response.

Whilst the terms of reference confine the focus of this inquiry to bullying within the workplace, the committee should be mindful of the fact that workplace bullying does not occur in isolation and is in part a reflection of behaviour to be found in the community generally. Bullying behaviour occurs across private and public sectors of the workforce, in schoolyards and in other areas of the community. A standing council on law and justice meeting attended by all federal, state and territory ministers noted 'the importance of finding effective means of dealing with all forms of bullying whether in the workplace, schoolyard, sporting club, cyberspace or elsewhere'. It must also be noted that instances of significant intimidation, harassment or coercion which are connected to the workplace can be initiated by third parties, including clients, suppliers and other persons who have a formal or informal role in the workplace.

Bullying amongst school-aged children and teenagers has become particularly prominent in the media. As access to telecommunication devices has become more mainstream for younger persons, there appears to be a commensurate increase in the use of electronic communication as a medium or tool to engage in antisocial or illegal conduct. As the Minister for Employment and Workplace Relations, the Hon. Bill Shorten, indicated on the National Day of Action Against Bullying and Violence, 'Bullying is a serious issue which not only impact kids when they are at school but can affect them long into adulthood.'

If the focus of the inquiry remains only on the workplace, the risk is that the community will not deal with important cultural and developmental factors which appear to be relevant to understanding the phenomenon and overall incidence of bullying in the community. By the time young people join the workforce, they have been exposed to many situations which cause them to define what is or is not acceptable behaviour. Therefore consideration of what happens in the workplace must include consideration of the wider context. The community expects employers to assist in reducing the incidence of bullying in the workplace just as employers have an expectation that bullying is reduced to the extent possible in the schoolyard. The key is to get the balance right within the existing legal framework by looking at ways education, support and assistance can be delivered to embed permanent and long lasting cultural and behavioural changes.

ACCI has recommended in its submission that it supports consideration of how improved research and data not confined to the workplace can be obtained in order for policymakers and stakeholders to assess the incidence and impact of bullying within the community and in the workplace. There exists a comprehensive legal framework for dealing with serious misconduct, including allegations and instances of bullying, unlawful harassment, intimidation or coercion at federal, state and territory levels. Recent changes to the Victorian Crimes Act known as Brodie's law should be monitored and evaluated.

ACCI is a key stakeholder in progressing the harmonisation of occupational health and safety laws and represents the industry on Safe Work Australia. Safe Work Australia, as the committee may know, is currently working on a draft model code of practice entitled Preventing and responding to workplace bullying. Whilst the nature of tripartite discussions means they will inevitably involve differences of opinion with respect to specific content, the fact that significant constructive work has been undertaken by representatives of employees, employers and governments illustrates the willingness of all stakeholders to work together to achieve a balanced framework of legal rights and duties. As regulation generally applies to a range of industry sectors and to a diversity of employers of various sizes, capacities and resources, the importance of tripartite dialogue remains vital.

Whilst the legislative framework is important, it is also important that workplace cultures, attitudes and behaviours are aligned to ensure positive safety outcomes are realised. ACCI continues to support a range of Safe Work Australia initiatives which promotes occupational health and safety best practice and awareness, including the National Safe Work Australia Week and the annual Safe Work Australia awards. ACCI chambers of commerce and industry association members also promote similar state and territory initiatives.

ACCI's submission outlines how an employer's ability to enforce relevant workplace policies can be undermined when an alleged perpetrator of bullying or harassment is able to then sue an employer and potentially win compensation or reinstatement. Employers should be provided with much more legal certainty in such double jeopardy scenarios in order to enforce policies on bullying in the workplace. ACCI has reiterated that reforms to the unfair dismissal system, for example, are warranted to assist business manage instances of serious misconduct. Many ACCI chambers of commerce and industry association members have developed services for employers which include the provision of relevant advice and information on how employers may implement appropriate policies and practices to deal with allegations of serious misconduct, including bullying. In addition, chambers of commerce and industry associations offer training to supervisor-managers on how to lawfully investigate and manage allegations of bullying in the workplace.

ACCI has recommended in its submission that governments utilise the established network of business associations and their distribution and communication channels to collaboratively implement national information and education campaigns, including considering how particular industry sectors may benefit from focused attention where there is evidence of particular problems.

ACCI welcomes the opportunity to assist the committee with its inquiry and will endeavour to provide further information to any questions on notice. That is our opening statement to the committee.

CHAIR: Thank you very much. We have heard from different states and territories about the varying definitions of what constitutes bullying, and you have talked about serious misconduct. Do you believe that there is a well-understood definition of bullying that goes right across Australia?

Mr Mammone : We had the benefit of listening, in part, to yesterday's proceedings and some of the discussions about that issue of the definition of bullying. Whilst there is no definition even for this inquiry, we have basically said that we are looking at it through a lens based on the occupational health and safety approach. That is our understanding in terms of the definition which we have suggested that this inquiry consider. From page 3 of our written submission, you would have noted that our definition is quite consistent with multiple definitions at various jurisdictional levels, and I might throw to my colleague, Carolyn Davis, for the specifics of those definitions. Obviously, at yesterday's proceedings, the committee heard from employers and others that there are some definitional issues. But certainly, from our perspective and that of our members when they provide their training and assistance to employers, the essential element of bullying is repeated behaviour that is unreasonable, or inappropriate behaviour directed towards a worker or group of workers that creates a risk to health and safety that is distinguishable—I think this is an important point to emphasise—from legitimate management practices. As the committee might understand, South Australia has a particular definition of bullying which has been picked up by various jurisdictions in guidance and code materials.

Mrs Davis : There seems to be a consistent need for some sort of definition and I think that reflects that it is a complex issue. It is behaviour based, it has relationship issues and interpersonal issues, and I think the consistent message is that we need some sort of definition that everybody can work with. That has got to be based around increasing people's awareness and understanding. As Dan said, the points that we have noted in our submission are consistent with most of the definitions. They vary slightly but they have the same conceptual base that there has to be that repeated behaviour.

The concern seems to be around that fine line between what are legitimate performance management issues and where it crosses into what could be construed as bullying.

CHAIR: You inferred that some of your members had concerns about taking action against a bully for legal recrimination. I think that is what you suggested. Do you have any examples, a case study or anything like that, where an employer has felt they have needed to take action but has not because they have been intimidated or felt like they would face legal recrimination?

Mr Mammone : Certainly. Through our network and our various meetings with our members in terms of getting feedback for this inquiry, a theme that seems to be common across Australia is that it is a very challenging issue when the employer, in trying to enforce that zero tolerance approach, must walk a fine tightrope and has a sword of Damocles hanging over their head because, when an allegation is raised and they must seriously consider the allegation, they need to investigate and ensure that it is a proper investigation and that natural justice is afforded. Even a sophisticated employer can get it wrong. We have mentioned cases in our submission, unfair dismissal, for example. On page 12 of our submission there are a number of cases, and I have those cases with me if the committee needs any further detailed information. Those cases are the ones that actually made it to a hearing. We hear about many instances where there are confidential settlements entered into to avoid the matter going further, where the employer feels that they have done everything required according to the law and everything necessary in terms of whether they have either upheld the complaint and have taken action against the alleged bully or have dismissed the complaint. In that case the alleged victim is aggrieved by the decision. It does become a bit of a catch 22 in those situations, because at the end of the day you can have all the policies in place—and we encourage all employers to have those policies, to get the training, to get refresher courses and to do all the things that are required. You can have that, and examples of cases taken against the Public Service, one of the most sophisticated of all resource employers, illustrate that even though you have all those laws and frameworks in place, it is very challenging.

We do come here today to say it is an issue. It is not unique to workplaces in Australia, but we are trying to raise awareness, to encourage employers to get policies and procedures in place, to take any allegations seriously, and to encourage employees to behave appropriately and set those boundaries. But they can be undermined. We have got a recent case, which I will not mention at the moment but I can provide it on notice to the committee, where an armed guard, in a heated situation, swore at their supervisor, behaved in an aggressive manner, and was terminated. He had a loaded weapon with him at the time this happened and Fair Work Australia ordered reinstatement of that employee. Employers are asking, 'How are we supposed to embed any change in a workplace?' when their decisions are second-guessed through these subsequent proceedings. This is the challenge. What we are saying here is that for employers who do get it wrong or that deliberately do not abide by the law, the laws are there to protect employees. We have fleshed that out in quite some detail in our submission in terms of a whole range of statutory and non-statutory legal rights and avenues to have that addressed.

CHAIR: My final question is about those legal frameworks and how you see them interacting. You have said you feel like you need to continually monitor Brodie's law. How do you see that particular decision to amend the stalking provisions interacting with some of the other legislative frameworks?

Mr Mammone : I have spoken to our Victorian-based members about this particular new amendment to the Crimes Act in Victoria. It is obviously very new law—as far as we understand there have been no investigations or prosecutions under it—but it is in addition to the existing occupational health and safety framework, which is criminal. There may be a misconception in the community—occupational health and safety laws are a criminal framework. In the unfortunate case of Brodie Panlock, those individuals were prosecuted under the criminal occupational health and safety framework. The feedback that we have received to date is that this should be seen as an additional avenue for serious cases of bullying. It is directly in response to what happened in that unfortunate situation and hopefully no other parents have to go through that. This will possibly assist, but it is very recent.

CHAIR: We heard from the Law Society of New South Wales yesterday that while occupational health and safety is criminal it does rely on WorkCover or workers compensation to take action. Obviously in a criminal case it relies on the DPP, or whoever, to take action. The Law Society says if you are being bullied, if you are not dismissed and you want to stay at work, there is no individual complaint mechanism to pursue that. I am interested in your views on that.

Mr Mammone : I did not hear that particular part of the inquiry, but I did hear very briefly from the New South Wales occupational health and safety regulators who mentioned the number of complaints made to that agency. I think that is testament to the fact that there are well and truly avenues available for individuals to raise those allegations to the appropriate regulator who will have the powers and resources to investigate. So I am not sure—without actually seeing the detail of their submission or understanding that further—whether that that is correct.

Mr RAMSEY: I want to follow up a bit more on one of Amanda's points in relation to the area that I think you called double jeopardy—where employees are stuck between a rock and a hard place, to use yet another metaphor. In regard to the interaction with the unfair dismissal laws, have you any ideas on how the unfair dismissal laws could be amended to accommodate this situation with employees taking genuinely assessed actions against someone they perceive to be bullying within the workplace?

Mr Mammone : Certainly. We have made a very detailed submission to a review of the Fair Work laws. We have not attached that to this submission but we alluded to it at page 12 and at footnote 27. There is already a small business fair dismissal code. It applies to small businesses, defined as those employers with under 15 employees. Where an employer relies on that code in good faith it will be deemed to be a fair dismissal. Part of that code, which was developed through consultation with employers, unions and other stakeholders, has some clear rules about how to deal with allegations of serious misconduct. Where there is a valid reason, it is fair to terminate. One of the suggestions that we have made is that that code should be extended to all employers for them to rely on. It is a very good example of a consistent and simple set of rules to follow. It would be particularly useful for all SMEs. At the moment, it is for small businesses of 15 employees or less. There are other SMEs that do not have a lot of resources and could rely upon that code.

Our submission to the review of the Fair Work Act included a lot of research about the cases that have been heard since the commencement of the Fair Work Act—we now have three years of experience. What we found is that in many cases there may be a valid reason to terminate. The factual circumstances justify the employer terminating the employee. And that can be with notice or without. Without notice, it is called summary dismissal; it is on the spot. What we have found is that when an aggrieved individual lodges and unfair dismissal claim and it is heard by Fair Work Australia—recall that most matters settle, so a very small proportion actually make it to the determination phase—the tribunal will in some cases accept that there was a valid reason and accept the employer's reasons but will then find out the procedures for carrying out the termination were not followed to the strict letter of the law; that there was some deficiency.

We say that that is an inbuilt penalty for small business because they do not know how to get these things right 100 per cent of the time. Whilst the tribunal find that there was a valid reason—there was bullying or there was misconduct—the employee, the bully in some cases, will receive compensation or get their job back. That is the situation. Employers are being told that they have to have policies in place and to have zero tolerance for serious misconduct. Yet at the same time there is always that risk, no matter what decision they make. If enforcing that policy involves a termination, that may come back in terms of a further claim by that individual. These are the difficulties. We have recommended and suggested some changes to the unfair dismissal provisions.

There are other provisions. There is a new general protections framework called 'adverse action' that we think has problems and requires particular amendments to fix. Those amendments would provide more certainty. If there were targeted amendments to those laws that would allow a valid reason to trump—if I could put in crude terms—procedural deficiencies in how that termination was carried out. There should be a recognition by parliament of that for these cases—which are important; the committee is looking at a very important issue for all stakeholders. If we believe that prevention is better than cure, then we need to arm employers with those tools and resources so that they have legal certainty that they can enforce those policies and not be landed with unfair dismissal claims down the track. As I said, most cases are settled. We know from research done by Fair Work Australia that 76 per cent of claims are settled by the employer to avoid the time and expense of defending those proceedings.

Mr RAMSEY: That is what is referred to as 'go away' money.

Mr Mammone : That is a term that has been bandied about. That is one way of describing those situations in which the employer feels that they did comply with the law and had a reasonable prospect of success yet pay to settle the claim.

Mr RAMSEY: Does ACCI have a position on the COAG draft of the voluntary code of conduct? Do you think that it is well drafted? Does it overstep the mark? One of our witnesses felt that what workplace bullying was was too ill-defined. We do not know where that code of conduct is going at the moment. Some of the states have adopted it—around about half. Half still have to do that. And because it is rolled up in a far wider OH&S reform across Australia, the sole focus is not on the bullying clauses of course. So whether or not that is ever adopted Australia-wide is a moot point at the moment. What is your position on at least the code of conduct?

Mr Mammone : I am sure my colleague will jump in because Carolyn has been intimately involved in the harmonisation exercise. I will paint a broader picture. We are very supportive of the tripartite structure with the harmonisation exercise and getting it right. We do not support harmonisation at all costs. We have said that, our members have said that and employers have said that. Where there are particular issues, they need to be addressed. We are generally supportive of the harmonisation exercise. But it is these details that get down to the fine details of exactly what a code of practice might say and the implications of that. That is where there will be differences of opinion. It is quite legitimate, even within the employer community and within industry sectors, to have a difference of opinion.

I will allow Carolyn to flesh that out in terms of the discussions and some of the pressure points within those discussions about that code. The essential point is that there is a general willingness of all stakeholders to try to get the details of particular elements of the work health and safety package right. That will then allow other jurisdictions that have not come online to see the benefits of doing so. But until those issues are addressed, and they are important issues, there will be concerns and you will hear from employers raises concerns, as you may have heard yesterday.

Mrs Davis : The Safe Work Australia process has worked very well in that we have a good tripartite process. It has the stakeholders around the table, and that is very important. It has had a lot of regulators around the table more than the stakeholders, so there is a lot of the work health and safety package that has had a regulation bent. We have been saying that the good occupational health and safety outcomes in the workplace at the coalface are from cultural change rather than from strict regulation, and I think some of the people yesterday would have reinforced that. The New South Wales regulator mentioned those things. It is about making those cultural changes and bullying is the classic one under that umbrella. What we are talking about here is behaviour and interpersonal relationships and interactions, so it needs to be something that is focused on changing behaviour in the community not just the workplace—but this code is about the workplace. We are keen to see it as a guide; that it does not have the same legal force. A code of practice has particular evidentiary status and that has been an issue for a lot of our members.

To support the process at Safe Work Australia, we have a huge network of employers, not just our members but a wider consultative forum, and we have a structure of reference groups. We have had a reference group that has been looking at the topic of bullying, and that has been meeting throughout the process. In the preparation of a document, it has not been determined whether it should be a code of practice or a guide as yet—and I think even Safe Work Australia say this in their submission. That is one of the sticking points: how to best achieve outcomes that you want in the workplace? As a guide it can provide a lot more structure and help people deal with this as a shared responsibility. It is important that everyone is involved in this, that it is not seen to be a regulation that falls on top of people.

Mr RAMSEY: Are the states that have already adopted it using it as a guide or are they using it as an enforceable instrument?

Mrs Davis : Some jurisdictions have got guides of their own. Victoria has a guide of their own that they have been using. This is not based on a particular guide and it is not in effect anywhere yet. Safe Work Australia is still debating it. There was a huge public comment response that Safe Work Australia got to their draft code or guide. That public response was so diverse and so difficult for the group of people to deal with that they have actually hired an expert external to the organisation to go through the public comment and see what those points of contention are and what they could be.

The difficulty with the draft was that it did not just deal with the serious misconduct issues; it tried to deal with a wider spectrum. I think in doing so they delved into the performance management issues. We, as an employer group, are very concerned about how you deal with performance management issues in the legal context that we already have and then with another regulatory overlay. So the resistance is that reasonable performance management needs to be recognised as reasonable performance management. Certainly employers are looking for some guidance for the other end of the spectrum, if you like. The serious misconduct is already dealt with under a legislative framework.

Mr SYMON: I would like to ask you about something early in your submission, and that was bullying outside the workplace. You were talking about electronic communication being increasingly used as a bullying device outside the workplace. I would like to ask what evidence or reports you have through your organisation of that happening inside the workplace. How has that increased in recent years, as I suspect the proliferation of electronic communication devices has?

Mr Mammone : That is a very good question. We have not addressed it in any detail in our submission. I guess the issue of cybersafety in general is something that the Joint Select Committee on Cyber-Safety looked at. The interim report highlights cybersafety and the young, so it is obviously something that is at the forefront of parliament's mind and the government response to that. The boundaries between in the workplace and outside of the workplace are blurred. We are seeing that it is very challenging and difficult for management to deal with those issues. Where do employers legitimately draw the line? It is in the eye of the beholder, really, in terms of employees who feel that it is an intrusion of their personal life when employers look outside of the workplace. Even within the workplace it is very challenging to try to enforce any policies in terms of conduct and appropriate use of email, Internet and social media. Even if you have those policies in place in the workplace, we see time and again that grievances are raised in terms of the intrusiveness or otherwise of an employer's right to manage the workforce and to appropriately deal with when work is to be performed in the workplace as distinct from personal use of time and the use of the employer's devices to conduct engage in unlawful conduct. We have seen instances of large internal organisations that are predominantly intranet based using those tools to victimise and bully co-workers. This is the challenge for employers. How do they appropriately manage and respond to it? Whilst we and our members can provide all the tools and resources—draft policies in terms of appropriate use of Internet and communications devices—we know that misconduct happens. So it is a challenge.

Mr SYMON: Do ACCI have any particular guidelines or policies available for their members with regard to bullying via electronic means? Is it something that is being looked at in detail?

Mr Mammone : I would have to take that on notice to provide a specific response. What I have brought today for the committee's information is something a chamber of commerce member has kindly provided. It is a pack of materials that they provide to participants in training. It is participant guides for investigations in harassment and bullying complaints. There is an equal opportunity, discrimination, harassment and bullying workshop and participant guide for managers and workers. I think there is Q and A and a draft policy within it. The member has provided that on the basis of the intellectual property remaining with the member and that it not be published. The member has kindly provided that to the committee just so you can understand exactly the types of issues and the breadth of issues that are dealt with in these training courses that are provided to employers and workers. But I would have to take on notice the specific issue about electronic communication devices.

Mr SYMON: That is fine. I expect that. It is still a new area to be dealt with on the regulatory or the government side of things. From the employer side of things it is still evolving.

Mr Mammone : In terms of cyberbullying among young people, a New South Wales standing committee inquiry's 2009 report titled Bullying of children and young people raised this issue about the difficulty for parents in monitoring their children's use of social media sites, and children are even asking whether it is appropriate or not for their parents to monitor that use. Obviously it is a big issue and a big challenge. Some regulators already have the ability to act, as I understand it, depending on the communication device and what legislation it falls under. It is a particular problem, as the committee is aware.

Mr SYMON: On a separate issue, part of your submission calls for the collection of more data and Australian based research. I take it from that that you want the government to take on this role so the data is available to all. Would you like to expand on what you would expect to see out of that?

Mr Mammone : There is already an enormous amount of work currently being undertaken by Safe Work Australia through those auspices. Carolyn can provide more information about that. As the Productivity Commission identified in its report, there is a lack of an evidence base. Obviously we support an evidence based approach to any policy area, including this one. We will be constructive in however that data is collected, whether it is done at a federal level in conjunction with state and territory jurisdictions. But the main point to emphasise is that once a body of Australian data, not international data, is collected it will provide more information and more of a picture of what is actually happening out there. Whilst there will always be surveys produced by various interest groups and sectors, they will all have their inherent limitations. If someone like the Productivity Commission has already undertaken this sort of research, we would not want things to be duplicated, because resources are sparse. I would encourage the committee to see if that work has already been done by someone else so that that information can be drawn upon. I think that is all we can say at this stage.

CHAIR: Unfortunately, we have run out of time. Thank you very much. We appreciate it. We can certainly take that information from the employer in terms of training as background information, so it will not be published on the website. If there is any additional information that you would like to pass on to the committee, obviously you can do so at any time. For questions taken on notice, if you are able to provide additional information to the committee, that would be great. You will be sent a copy of the transcript of the evidence that you have given today, to which you can make corrections of grammar or fact.