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Standing Committee on Education and Employment
10/07/2012
Workplace bullying

COSTIGAN, Ms Petrine, Law Society of New South Wales

SIVARAMAN, Mr Giri, Law Society of New South Wales

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 in the respective houses. I now invite you to make an opening statement and then we will proceed to questions.

Ms Costigan : Madam Chair, Deputy Chair and standing committee members, I believe the committee has received the submission of the Law Society of New South Wales, which was prepared by the society's employment law committee. Mr Sivaraman and I are both members of the New South Wales Law Society's employment law committee, which specialises in employment and industrial law. Members of that committee represent all stakeholders in the workplace, including employers, employees, contractors, unions, employer organisations and government.

Broadly, the Law Society's submission to this committee: the necessity for a clear definition as to what constitutes workplace bullying; its members are noticing an increasing number of workplace complaints about bullying; when complaints of workplace bullying are made, there is the necessity for an independent investigation of the allegation, using the principles of procedural fairness and natural justice to protect both the alleged victim and the alleged perpetrator; presently in Australia there is no statutory scheme that specifically addresses workplace bullying, although there are piecemeal remedies available to victims in some circumstances through discrimination law, occupational health and safety and industrial relations legislation and at present, legal remedies are reactive and can only be pursued by a victim once harm or injury is suffered; there is no protection for victims in terms of providing an early response, which can impact victims by prolonging their exposure to bullying and resulting in more serious trauma and injuries; and finally, because there is no specific regulatory framework to deal with workplace bullying and at times there is no legal remedy available to a victim, the present regulatory frameworks do not, in the Law Society's view, provide a sufficient deterrent to workplace bullying.

If I could take the committee to page 4—

CHAIR: I have to say that, unfortunately, your submission has not yet been processed and so we do not have a copy of it in front of us. We will have to visualise it.

Ms Costigan : When you do have the opportunity to view the submission, the first paragraph on page 4 as it presently stands does not make sense, and we apologise to the committee for that. Put simply, the paragraph was meant to convey, firstly, that with any system it is important to protect a person who makes a complaint against retaliation and victimisation because they have made that complaint and, secondly, that with any legal framework it is also important to encourage appropriate, common sense conduct. For example, many companies have mission statements and codes of conduct that often include notions of integrity and respect. If those mission statements and codes of conduct were taken seriously by employees and employers, it would result in civil communications in the workplace.

Mr Sivaraman : I appreciate you do not have the written submission, so, again, you will have to visualise. In our submission we cite that, when dealing with the international regulation of bullying—which I noticed was a question raised earlier today—there are laws in force in a number of different countries, predominantly European countries, which directly address bullying in the workplace. That was based on an article by Maria Guerrero. However, upon further review of the position of those countries, the basis of that article is, I think, slightly outdated. It is not completely accurate to say that the countries cited all address bullying directly—some of them certainly do, particularly France and Sweden; others address it in a more indirect fashion. What I would ask the committee is whether we could have the opportunity to provide a very short, further written submission just to address that issue so that we can explicitly advise you of the position of those other countries.

CHAIR: Absolutely. There is no problem with putting in further information until our reporting date. The earlier you do that, the better, because we will be able to read it and consider it.

Mr Sivaraman : Thank you.

CHAIR: Was there anything else?

Mr Sivaraman : No. We are happy to take questions.

CHAIR: Given your review of the different bits of legislation in place, I have a couple of questions on that. To provide that early response, which you have spoken about, and the number of different laws—OHS and in some cases the criminal codes, particularly in Victoria—where do you see a legislative framework sitting best to address bullying in the workplace?

Ms Costigan : The most logical place for that is in Fair Work. It could be an additional right under the Fair Work legislation. It is there to some extent in occupational health and safety legislation with the harmonisation of those laws, but the most obvious place would be in Fair Work.

Ms O'NEILL: In Fair Work? That would take it to a consistent, national approach?

Ms Costigan : That is right.

Ms O'NEILL: You talked about different remedies. I am interested in how you or your members might deal with a situation where, on one level, a claim is being pursued under the occupational health and safety legislation—although obviously that requires someone to litigate against the company on the basis that they failed to meet their duty of care—while, on another level, it might fit under antidiscrimination law, because there was discrimination based on sex or race. In your experience, how do they interact? Have you found it difficult to wade through a bullying claim because it did not quite fit any box?

Ms Costigan : That is right; with some complaints of bullying, there is no redress for that particular victim. In the occupational health and safety area, the victim does not have the right to bring an OH&S claim. That has to be brought by someone else, either the union or WorkCover. The victims themselves do not actually have redress through those laws, except through workers compensation. There are cases that slip through the cracks because there is no redress or legal framework available for those victims.

CHAIR: You talked about a clear definition. There has been wide-ranging debate about how clear the current definitions are and how consistent they are. Indeed, we heard this morning that some people believe that you cannot get a clear and objective definition of 'bullying' because of the subjective nature of psychological injury—who did what to whom. In looking at this issue, have you been able to find an objective definition? And, of course, examples will play out differently. Is it possible to get a definition of 'workplace bullying' that leaves out the sort of 'he said, she said' aspect? That was brought up this morning. For example, one instance of shouting is not necessarily workplace bullying, nor is saying something to someone about someone else. Do you think a nationally consistent, objective definition can be established?

Ms Costigan : When you have the benefit of reading our submission, you will see that we adopted the definition in the Safe Work Australia draft code. Having said that, we do differ in one respect, which is that there are instances where we say one incident is enough if that incident is aggravated enough.

CHAIR: So there are two thresholds in your definition. One is ongoing and systematic, at sort of the lower level—

Ms Costigan : That is right.

CHAIR: while the other is in the case of an aggravated instance. We were talking this morning about an instance—I think it must have happened in New South Wales—where a young apprentice was wrapped in plastic. So one incident, if there is enough aggravation, would constitute workplace bullying?

Ms Costigan : That is right.

CHAIR: And would there be a definition for that threshold?

Mr Sivaraman : That is right. In our submission, we say it needs to be 'sufficiently aggravated'. The example that you cited is exactly the type of example we would envisage as satisfying that definition, and there is support for that as well in some of the literature analysing regulation overseas—that there can still be that one particularly humiliating incident that is sufficiently aggravated to constitute bullying.

CHAIR: In Victoria, they have introduced what is commonly referred to as Brodie's law, which amends the Crimes Act to broaden the definition of bullying and to cover stalking. Do you think that is an appropriate legislative response, and how do you see that interacting with a new statute, perhaps in the Fair Work Act?

Mr Sivaraman : That is a very specific protection, which is based on the onus of being satisfied beyond reasonable doubt. It is also one that would be prosecuted, as I understand it, by the DPP, or its equivalent in Victoria. It would be quite different from a civil process, which is what we are advocating, which could be initiated and prosecuted by the victim, would lead to a direct remedy for the victim and would not have to be satisfied beyond reasonable doubt, only on the balance of probabilities. It would probably be a much more accessible process.

What we are advocating would be quite different from a civil process. It would be one that could be initiated by the victim, prosecuted by the victim and lead to a direct remedy for the victim. It would not have to be satisfied beyond reasonable doubt; it would only be on the balance of probability. So it is a much more accessible process. I do not think there would necessarily be that much interaction between the two processes, save and except, I suppose, if provisions and protections against self-incrimination that were to arise in certain circumstances, but that would only occur if there was going to be a criminal prosecution. I suggest that it would be unlikely to occur in the majority of the types of matters that we reviewed.

CHAIR: Over to Rowan.

Mr RAMSEY: Thank you, Amanda. You have already asked some of the questions I had in mind. This morning we heard evidence from two employee organisations and also WorkCover New South Wales who, without trying to paraphrase them, told us that there are already sufficient laws in place to reach prosecutions and to discourage poor actions in the workplace. You happened on the incident of the apprentice getting wrapped in bubble wrap. Was there a lawful outcome to that case?

Mr Sivaraman : I think there was in that he brought an action in negligence, independent of the prosecution commenced by WorkCover. If you wanted to bring an action in negligence for bullying in New South Wales now, you would have to have suffered a serious injury that gave rise to a permanent impairment or what is called a whole person impairment of greater than 15 per cent. That is going to cut out a whole lot of people who have suffered as a result of bullying. For example, if you have suffered hurt, humiliation and distress as a result of bullying, you do not have access to that type of action. If you have suffered an injury but your injury is not so serious as to meet that threshold, you will not have access to any action.

Further, as part of the national OH&S harmonisation, the only other party, aside from WorkCover, that could commence a prosecution is a union, and that has now been reduced. You do not have that right as an individual; it is completely at the discretion of the statutory authority as to whether any prosecution will be commenced, and that kind of prosecution would not lead to any remedy to the individual in any event.

CHAIR: Can I clarify: you are now not able to pursue negligence as a result of the OH&S harmonisation?

Mr Sivaraman : No. Perhaps I was not being clear. As a result of OH&S harmonisation, in the vast majority of situations it is WorkCover that can commence a prosecution; the ability of a union to do so has been limited; and there is no ability for the individual victim to do so. An action in negligence is not accessible to someone unless they establish a particular threshold of impairment. People who do not get to that point do not have that course of action.

Mr RAMSEY: Are you saying that, if someone is bullied at work—we will put the bubble wrap example to one side—they do not have anywhere to go in a legal sense at the moment?

Mr Sivaraman : What we have at the moment is a piecemeal approach. It is not that they do not have anywhere to go. When you get to read our submission, you will see that there are definitely legal remedies available but they are all predominantly attribute specific. What I mean by that is that the person needs to show that the bullying happened because of a protected attribute. It could happened because of—as Madam Chair stated earlier—attributes such as sex or race.

Mr RAMSEY: A discrimination case.

Mr Sivaraman : That is right—a discrimination type case. If you have been a victim of bullying that is not attribute specific, you do not have access to an individual remedy unless you can show negligence and that you have suffered that high level of impairment.

Mr RAMSEY: I will leave that for now.

Ms O'NEILL: I was very interested in what you were saying there, but I do have a couple of questions I want to ask. Ms Costigan, you made a comment about the importance and power that stand ahead of regulation, I think—certainly, in my view—of the mission and values statements of organisations, and the mismatch between those statements and actual practices in the workplace. In light of that, we need to seek regulation to bridge the gap. Do existing regulatory frameworks provide sufficient deterrence to people who might be bullies in the workplace or to employers who allow bullying?

Ms Costigan : No. It is the New South Wales Law Society's view that the present regulatory framework does not.

Ms O'NEILL: How could it be improved?

Ms Costigan : If there was one regulatory framework that all people could go to, whether or not they had a protected attribute—one that was available to everyone.

Ms O'NEILL: And that would enhance the ability of individuals to articulate what is happening in their workplace and give them the protections they need to avoid being further bullied or harassed out of their workplaces?

Ms Costigan : Or to resolve issues of conflict in the workplace.

Ms O'NEILL: Thank you. The current complaint mechanisms, you said, are ineffective because they are too piecemeal, and you talked about centralising them and making them easier to access. In addition, do you think workplace bullying dispute investigations should be conducted internally, or externally—by independent organisations? What are your views on that?

Mr Sivaraman : Do you mean 'internally' as in within the company, by the employer?

Ms O'NEILL: Yes.

Mr Sivaraman : I do not know if that has been specifically addressed, other than by what Ms Costigan said at the outset: we think there need to be processes for the employer, including code-of-conduct type processes and processes about integrity in the workplace, that are taken seriously by both employer and employee. In our submission, we advocate early-response mechanisms. I am not sure if we have a specific position on whether that early-response mechanism should be enshrined in some sort of internal procedure, but we could take that question on notice, if need be.

Ms Costigan : We could. Also, there are now, within many companies and perhaps big employer groups, internal processes and internal grievance procedures available. I think it is preferable that matters be resolved or recommendations be made internally before they go external.

Ms O'NEILL: So it would be a graduated response, starting with the lower level of an internal response and then, if need be, escalating it further and making those other options available?

Ms Costigan : That is right.

Ms O'NEILL: I have one last question. We have had evidence in some of submissions to us about a bullying culture being transferred from one workplace to another; as a person moves, they take a bullying culture with them. Do you have any views about the appropriate ways to ensure that this does not happen?

Mr Sivaraman : I do not think that is something we have—

Ms Costigan : No, that is not a matter that we have addressed or actually even thought of. We would not regard ourselves as expert enough to be able to respond to that.

Ms O'NEILL: Thank you.

Mr SYMON: Ms Costigan, your opening statement was very good. It was 'all systems presently reactive', and I think you have covered a bit of that. My line of questioning is about what can be done, from the Law Society's point of view, to get away from that system where the only way to resolve things is reactively. Is there a model that you can link to what we could do by either regulation or code to get away from that system? Obviously, what we have now does not work for many people.

Ms Costigan : I think that education and awareness of employers and employees is very important. I also think systems of monitoring, such as those in the occupational health and safety laws, are very important—monitoring and conversations within the workplace about conduct—and perhaps early intervention by way of a mediator, if that were appropriate.

Mr SYMON: By which mechanism would you see that being achieved? This is a hypothetical.

Ms Costigan : As in, would the mechanism be through—

Mr SYMON: How would that come into being? At the moment an employer does not have such a system. In your view, how would that system come into being? What is needed to make that happen?

Ms Costigan : Education and awareness is something that could happen in any event. But there could be some requirement on workplaces to have procedures available to their employees.

Mr SYMON: So that is putting it back on government to say that this is what businesses should be looking at in order to have a proactive system rather than a reactive system.

Ms Costigan : It could be.

Mr Sivaraman : I think it was to Madam Chair's question about the appropriate framework or body for having these matters agitated that we stated Fair Work Australia. There is that mechanism for adverse action complaints at the moment. There is very specific protection contained in the Fair Work Act whereby matters can be referred very quickly to Fair Work Australia for conciliation. That can be quite a proactive and an early response mechanism where you have the benefit of an independent person or body to help you resolve the dispute. So I would think it would potentially be an additional mechanism that could be available.

Mr SYMON: I would like to think there was something even a step or two before that; because, again, that is a long way down the track. A lot of damage can be done while getting to that point. In your view, is there an easier or better way to stop so many people having to get to that point?

Mr Sivaraman : The only additional point I would make is that, in terms of an internal grievance resolution process, in our experience as industrial lawyers we are familiar to some extent with those existing, for example, in industrial instruments, which allow employees to raise matters and provide a forum by which those matters have to be dealt with internally before they can be referred elsewhere. So that is both a right and a compulsion that can probably allow for the early intervention process, as you have described.

CHAIR: I have a couple of quick questions. You have obviously had some input into the Safe Work Australia code of conduct?

Ms Costigan : No. We did not.

CHAIR: Okay. I wanted to see whether you had any comments on the draft code of conduct. You are probably not able to answer that now. Apart from the definitional issue we discussed, I would be interested in anything you wanted to add to that.

You made comments on the importance of a national approach to this. Do you see the need for a national approach to move this forward, and does it need to move forward in each state and territory? I am interested in your comments on that. Obviously Fair Work would give this a consistent national approach. Has that been a problem for any of the people whom you have represented, companies et cetera?

Mr Sivaraman : The reality is that as industrial practitioners—and the committee would have noted this—far more practice is now occurring on a national level; that is just the way it has become. One of the issues that we identified—and Ms Costigan stated it at the outset in her submission—is the piecemeal systems that are in place. Part of the reason for that would be, I think, a lack of parity across different states and territories. So, from our perspective, a national system would go some way to overcoming that piecemeal approach.

Ms Costigan : The only other additional matter is that most employees now come under the Fair Work Act, which is why it would seem the most obvious place for it to be regulated.

Mr RAMSEY: The Australian Federation of Employers and Industry were quite adamant—and this is coming back to Amanda's original point—that some of these objectives are quite subjective and difficult for employers to sort out. For instance, one of the points put up was unreasonably overloading a person with work or not providing enough work to another. It depends on the speed with which someone does their work. That is a totally subjective judgement. You can understand why employers would be fairly reluctant to see that type of legislation enforced upon them.

Ms Costigan : Often things like that, though, can be objectively assessed. I agree there are subjective elements, like how quickly someone works. I suppose the law is full of the 'reasonable person' test. We deal with those concepts on a daily basis. We would say that they are often matters that can be objectively assessed. For example, what is the workload of this person as compared to that person? That is one way of being able to assess it.

Mr Sivaraman : I will just add to that point. That sort of assessment has already taken place in courts. For example—I cannot give you the exact citation—the High Court had to look at the matter of Cerebos, where a claim was brought in negligence on the basis of a particular worker who was being overloaded with work. One of the assessments the court had to make in determining whether the company had a duty of care and whether it had breached that duty of care—which is a subjective and objective assessment—was to determine what was appropriate for that particular person. It is an issue that we have had to deal with, and it has arisen in the past.

Mr RAMSEY: It is likely to be fairly problematic, though, for an employer.

Mr Sivaraman : I suppose it could be problematic for both sides in establishing the test. We would have to accept that there are going to be times when attempting to satisfy a subjective or objective test can raise issues.

CHAIR: I have one last question—and I am not a lawyer—on this test of negligence. What statutory area does that come under? Is that a common law offering or is it under health and safety?

Mr Sivaraman : It is common law.

CHAIR: That applies across the country.

Mr Sivaraman : That is right. It is curtailed and affected by statute across the country.

CHAIR: By Fair Work?

Mr Sivaraman : No. It is by civil liability legislation or workers' compensation legislation, and that may vary from state to state. But the notion of negligence is a common law concept.

CHAIR: So, in a state where there is no-fault work cover, that can extend to eliminate the negligence. I am not aware of this having been a right or an opportunity for workers in South Australia to take. My understanding is that it is in the rules of the no-fault work cover.

Mr Sivaraman : I do not think we can speak for South Australia. This question might be better answered by the Law Society committee on personal injury law; but, to the extent that we can answer the question, I think what happens is that, whilst the common law right exists, the availability of it is reduced, for example, by setting impositions of how injured you have to be before you can then elect to make that sort of common law claim.

CHAIR: So in New South Wales that threshold is the 15 per cent for permanent injury. That threshold is likely to vary across the country. I just needed to clarify that. Thank you very much.

Unfortunately, we have run out of time. Thank you for your attendance here today. If you have been asked to provide any additional information would you forward it through to the secretariat.

We will obviously be expecting the additional submission with the international comparison and comment on that. You will also be sent a copy of the transcript of your evidence, to which you can make corrections of grammar or fact.